PART I - TERMS OF SUPPLY FOR GOODS AND SERVICES
THE CUSTOMERS ATTENTION IS DRAWN IN PARTICULAR TO THE PROVISIONS OF CLAUSE 10
1 DEFINITIONS, INTERPRETATION AND GENERAL
1.1 These terms and conditions shall apply to the supply of Goods and/or
Services by the Company to a Customer.
1.2 In these Terms:
(a) Business Day a day (other than a Saturday, Sunday or public
holiday) when banks in London are open for business
(b) Company means Quantum Controls Limited;
(c) Customer means the individual, firm, company or other party with
whom the Company contracts;
(d) Consents means any and all permissions, consents, conditions,
restrictions, approvals, notices, and licences of the local authority or
any third party necessary for and relevant to the performance and
completion of the Services;
(e) Contract the contract between the Company and the Customer
for the supply of Goods and/or Services in accordance with these
Terms;
(f) Contract Specification the description or specification of the
Services provided in writing by the Company to the Customer;
(g) Goods any goods or other deliverables supplied to the Customer
by the Company;
(h) International Supply Contract means such a contract as is
described in section 26(3) of the Unfair Contract Terms Act 1977;
(i) Manufacturers Warranties the warranties given by any third-
party manufacturer in relation to Goods supplied by the Company;
(j) Order the Customers order for the supply of Goods and/or
Services as set out in the Customers purchase order;
(k) Qualifying Goods means supply of Goods and any associated
Services by the Company, where the relevant Goods have been
designed and manufactured by the Company:
(l) Services the services, including the supply of any associated
Goods, supplied by the Company to the Customer as set out in the
Contract Specification;
(m) Site means the location where the Services are to be performed
or Goods supplied as set out in the Contract Specification;
(n) Site Standards means the required standards, access
requirements and facilities to be made available at the Site for use
by the Company and which are set out in the Contract Specification;
(o) Terms means the terms of sale set out or referred to in the
Companys acknowledgment of Order;
(p) Third Party Specification has the meaning given in clause 3;
(q) Warranty Period means the period commencing on completion
of the supply of the Qualifying Goods and concluding (as applicable)
on a date:
(i) 3 months from the supply date in the case of rectifiers and
capacitators;
(ii) 18 months from the supply date in the case of switchgear;
(iii) 24 months from the supply date in the case of capacitators;
and
(iv) 12 months from the supply date in the case of any other
Qualifying Goods; and
(r) Working Hours means 8.00am to 4.30pm, excluding Saturdays,
Sundays, and Bank Holidays.
1.3 The headings in these Terms are for convenience only and are not for the
purpose of interpretation.
1.4 Any reference in these Terms to any provision of a statute shall be
construed as a reference to that provision as amended, re-enacted or
extended at the relevant time.
1.5 Failure by the Company to enforce strict compliance with these Terms by
the Customer will not constitute a waiver of any of the provisions of these
Terms.
1.6 References to clauses are to clauses of these Terms, unless stated
otherwise.
2 CONTRACT TERMS, VARIATIONS AND REPRESENTATIONS
2.1 No Order in pursuance of any quotation or otherwise shall be binding on
the Company unless and until such Order is accepted in writing by the
Company. Any contract made between the Company and the Customer
shall be subject to these Terms and, save as set out in these Terms, no
representative or agent of the Company has authority to agree any terms
or make any representations inconsistent with them or to enter into any
contract except on the basis of them. Any such term representation on
contract will bind the Company only if in writing and signed by a director
of the Company.
2.2 Unless otherwise agreed in writing by the Company (which shall include
anything contained in any quotation delivered by the Company to the
Customer) these Terms shall apply to the exclusion of any terms
stipulated or referred to by the Customer in its Order (whether by written
purchase order or otherwise) or pre-contract negotiations or any
inconsistent terms implied by law or trade custom, practice or course of
dealing.
2.3 The Order constitutes an offer by the Customer to purchase Goods and/or
Services in accordance with these Terms. The Customer is responsible for
ensuring that the terms of the Order and any applicable specification are
complete and accurate and that the Customer gives the Company any
necessary information relating to the Goods and Services within a
Page 1 of 14
sufficient time to enable the Company duly to perform its obligations in
connection with this Contract.
2.4 Where the Company has not given a written acknowledgment of Order,
these Terms will nonetheless apply to the Contract provided that the
Customer has had prior notice of them.
2.5 Where the Customer does not formally accept a quotation from the
Company but the Customer continues to instruct the Company to supply
the goods or services, the Customers continued instructions will be
deemed to be acceptance of these Terms.
2.6 Any samples, drawings, descriptive matter, or advertising produced by
the Company and any descriptions or illustrations contained in the
Company's catalogues or brochures or website are produced for the sole
purpose of giving an approximate idea of the goods and services
described in them. They shall not form part of the contract or have any
contractual force.
2.7 The Company reserves the right to correct any clerical or typographical
error made by its employees (whether in any sales literature, quotation,
price list, acceptance of offer, invoice or other document or information
issued) at any time without any liability on the part of the Company.
2.8 For the avoidance of doubt, except as set out in these Terms, no variation
of the Contract, including the introduction of any additional terms shall be
effective unless it is agreed in writing and signed by a director of the
Company.
2.9 The Contract constitutes the entire agreement between the parties. The
Customer acknowledges that it has not relied on any statement, promise
or representation made or given by or on behalf of the Company which is
not set out in the Contract.
3 SPECIFICATION, INSTRUCTION OR DESIGN
3.1 The Contract shall include only such Goods and Services as described in
the Contract Specification or the Order (if subsequently accepted by the
Company in accordance with clause 2.1). Unless specifically agreed in
writing, all drawings dimensions and weights submitted by the Company
shall be taken to be approximate and shall not form part of the Contract
Specification. The Company reserves the right to make any changes in
the Specification which are required for the Goods or Services to conform
with any applicable statutory or regulatory or safety requirements or any
other changes which the Company may reasonably require, provided such
changes do not substantially affect the quality or performance of the
Goods.
3.2 If Services are supplied in accordance with a specification, instruction or
design supplied by the Customer or any third party on behalf of the
Customer (Third Party Specification) then:
(a) the suitability and accuracy of that Third Party Specification will be
the Customers responsibility;
(b) the Company reserves the right to amend any such Third Party
Specification if required by any applicable statutory or regulatory
requirements;
(c) the Customer will indemnify the Company against all infringement
or alleged infringement of any third partys intellectual property
rights and any loss, damage or expense which it may incur by
reason of any such infringement or alleged infringement in any
country in connection with such Third Party Specification; and
(d) the Customer will indemnify the Company against any loss, damage
or expense in respect of any liability arising in any country by
reason of the goods being made or the services being provided to
such Third Party Specification.
(e) the Customer undertakes to ensure that all necessary permissions
or consents (including those of third parties) are obtained in order
to permit the Company to supply Services in accordance with the
relevant Third Party Specification.
(f) Clauses 3.2 shall survive termination of the Contract.
4 CUSTOMERS REPRESENTATIONS
4.1 The Customer shall provide the Company with adequate instructions and
accurate information regarding the Goods and/or Services it wishes to
purchase from the Company. If the Company suffers any delay caused
by the Customer inadequate instructions or inaccurate information, or
delay caused by the Customers failure to give the Company adequate
instructions or accurate information, the supply of Goods and/or Services
shall be extended for such period as the Company may reasonably
require.
4.2 Where the Contract requires the provision of Goods and/or Services at
the Customers premises, the Customer hereby grants a licence to the
Company, its employees and sub-contractors (together with appropriate
transport) to enter upon the Customers premises for the purpose of
supplying the Goods and/or Services. Except where otherwise stated in
the Specification or agreed in writing, the Customer shall provide the
Company at the Customers own cost and expense with a suitable water
and power supply, toilet and washing facilities and storage space on Site
at such times and in such a manner as the Company will from time to
time require. The Customer shall ensure that its premises and all plant
and equipment which is used by the Companys employees or sub-
contractors or with which they may come into contact or to which they
may be exposed complies with the Health and Safety at Work Act 1974,
all relevant statutory provisions (as defined in that Act) and all other
obligations imposed by statute and common law relating to health and
 safety and will indemnify the Company against any loss, damage or
expense in respect of any failure by the Customer to comply with its
obligations.
5 QUOTATIONS AND PRICES
5.1 A quotation by the Company is not an offer. Quotations are valid for 30
days only and subject to withdrawal or revision at any time before
acceptance of the Order by the Company in accordance with clause 2.1.
5.2 Unless otherwise expressly agreed in writing, the price set out in an Order
has been calculated on condition that the Services are capable of being
performed to an agreed programme with uninterrupted access to the Site
during the Working Hours and that the Site conforms to the required Site
Standards. In the event the Customer requires performance of the
Services outside Working Hours or the Site does not conform to the Site
Standards, any additional costs or expenses incurred by the Company
(including but not restricted to the supply of any necessary services,
waiting and travelling time) shall be paid by the Customer to the
Company within 30 days of the date of the Companys invoice or demand
for payment.
5.3 Any Goods and Services requested in addition to those identified in the
Contract Specification will be chargeable for in addition to the price stated
in the Contract as will the costs of all tests, alterations, additions and all
other work undertaken at the request of the Customer but not identified
in the Contract Specification. Those additional costs will be calculated by
the Company having regard to the rates and prices set out in its quotation
or in the Specification or as otherwise agreed with the Customer and will
be paid for by the Customer within 30 days from the date of the
Companys invoice or demand for payment.
5.4 Unless otherwise agreed in writing, the Company shall be entitled to
increase its prices at any time to take account of any increase in the cost
to the Company of purchasing any goods or materials or manufacturing,
working on or supplying any goods or services (including, but not limited
to, any such increase arising from any error or inadequacy or change to
any Third Party Specification any delay caused by any instructions of the
Customer or a third party or failure of the Customer or third partys failure
to give the Company adequate or accurate information or instructions or
any change in labour costs, taxes or insurance premiums) and such
increased prices ruling at the date of supply of Goods and/or Services by
the Company shall be substituted for the previous contract price.
5.5 All prices are quoted are exclusive of VAT and the Customer shall pay any
and all taxes, duties and other governmental charges payable in respect
of the Goods and/or Services.
6 DELIVERY OF GOODS
6.1 Where the Company supplies Goods as part of the Services, then in all
such Contracts unless otherwise specified in writing by the Company in
the Contract Specification, the Company shall deliver the Goods to the
location set out in the agreed Order or to such other location as the
parties may agree at any time after the Company notifies the Customer
that the Goods are ready.
6.2 If the contract requires the Customer to take delivery of the Goods at the
Companys premises or such other location as may be specified by the
Company then:
(a) for the purposes of this sub-clause the Goods shall mean the whole
or any instalment of the Goods and the collection date shall mean
the date on which the Goods are or will be ready for delivery; and
(b) the Company shall notify the Customer of the collection date and
the Customer shall take delivery of the Goods within 5 days of the
collection date.
6.3 If the Customer shall for any reason fail to take or accept delivery of the
Goods on the agreed date or dates, delays in doing so or fails to provide
a delivery address pursuant to an Order then, except where such failure
or delay is caused by a Force Majeure Event or the Companys failure to
comply with its obligations under the Contract, without prejudice to any
other rights of the Company (whether under these Standard Terms or
otherwise):
(a) delivery of the Goods shall be deemed to have been completed at
9.00 am on the third Business Day after the day on which the
Company notified the Customer that the Goods were ready; and
(b) the Company shall be entitled to make an additional charge in
respect of any delay caused by such failure and for any costs
incurred as a result of repeated delivery necessitated by such
failure.
6.4 Should the Company be delayed in or prevented from delivering the
Goods due to a failure of the Companys (or its sub-contractors)
computerised business or due to any cause beyond the reasonable control
of the Company, the Company shall be at liberty to terminate the Order
placed by the Customer without incurring any liability for any loss or
damage arising from such termination (but without prejudice in any such
case to rights accrued to the Company in respect of deliveries already
made).
6.5 While the Company will use its reasonable endeavours to deliver the
Goods by any date or within any period agreed upon, such dates and
periods are estimates only, given in good faith, and the Company will not
be liable for any failure to deliver by or within such a period nor shall
delays in the delivery of an Order entitle the Customer to refuse to take
delivery of an Order. Time for delivery shall not be of the essence of the
Contract. The Company shall be entitled to defer delivery until any
monies due from the Customer have been received.
6.6 Subject to any agreement in writing by the Company, the risk in the
Goods which the Company agrees to supply shall pass to the Customer on
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the date such Goods are delivered or made available for collection (as the
case may be). Title in the Goods shall pass when the Customer pays for
the Goods in accordance with clause 8.
6.7 Unless specifically stated in the Contract Specification, the price of the
Goods is exclusive of the costs and charges of inspection, packaging,
insurance and transport of the Goods, which shall be invoiced to the
Customer.
6.8 If the Contract is an International Supply Contract and the parties have
expressly agreed in writing to adopt Incoterms for delivery, it shall be
deemed to incorporate the latest edition of Incoterms current at the date
of the Contract save that in the event of any inconsistency between the
Incoterms and any express term of the Contract (including these Terms)
the latter shall prevail.
6.9 The Customer acknowledges that Goods for delivery outside of the United
Kingdom may be subject to United Kingdom export controls as well as
import controls at their destination. The Customer will be responsible for
ensuring that all necessary clearances and licences are obtained prior to
the dispatch dates for the Goods to be supplied and for obtaining all
necessary documentation and lodging the same with the Company prior
to despatch of the Goods.
7 SUPPLY OF THE SERVICES
7.1 The Company shall provide the Goods and/or Services to the Customer in
accordance with the Contract Specification in all material respects.
7.2 The Company shall use reasonable endeavours to meet any performance
dates for the Services specified and agreed in the Order, but any such
dates shall be estimates only and time shall not be of the essence for the
performance of the services. The Company shall be entitled to defer
provision of the services until any monies due from the Customer have
been received.
7.3 The Company shall have the right to make any changes to the Goods
and/or Services which are necessary to comply with any applicable law or
safety requirement or which do not materially affect the quality of the
Goods and/or Services, and the Company shall notify the Customer in any
such event.
7.4 The Company shall provide the Goods and/or Services using reasonable
skill and care.
7.5 If the Customer shall for any reason prevent (or allow any other person to
prevent) the Company (or its subcontractors) from supplying the Goods
and/or Services (or any part thereof) on the agreed date or dates except
where such prevention is caused by a Force Majeure Event or the
Companys failure to comply with its obligations under the Contract,
without prejudice to any other rights of the Company whether under
these Terms or otherwise, the Company shall be entitled to make an
additional charge in respect of any costs incurred as a result of repeated
provision of the Services necessitated by that failure.
7.6 The Customer shall provide all sufficient and accurate information
requested by the Company in a timely fashion to enable the proper supply
of the Goods and/or Services by the Company so as not to delay or
disrupt the Company in performing its obligations under the Contract. The
Company shall be entitled to rely on the accuracy and sufficiency of all
information provided to it by the Customer, and to make assumptions on
the basis of such information, when supplying the Goods and supply of
Services.
7.7 The Customer is responsible for ensuring that the Site complies with the
Site Standards at the time of delivery of the Goods and performance of
the supply of Services.
7.8 Except where otherwise stated in the Contract Specification, the Customer
must obtain at its own cost all Consents required to enable the Company
to carry out and complete the supply Goods and/or Services and the
Customer must comply with any conditions contained in the Consents
relating to the Goods and the supply of Services or the Site.
7.9 The Customer agrees to have due regard to all information supplied by
the Company relating to the use of the Goods necessary to ensure the
Goods will be safe and do not pose a risk to the health and/or safety of
any person at all times when the Goods are being set, used, cleaned or
maintained by any person.
7.10 The Customer agrees to indemnify the Company in respect of any and all
claims, losses, costs, and expenses suffered or incurred by the Company
arising from any act, omission or default of the Customer (including any
breach by the Customer of any of its obligations under this Contract).
8 PAYMENT
8.1 Subject to clause 8.2, payment to the Company shall be made by the
Customer in full in Pounds Sterling before any Services are rendered (or,
when applicable, before any Goods are delivered). Once payment has
been received in full, the Company shall provide an estimated date for the
commencement of the supply of the Services (or where applicable, an
estimated delivery date for dispatch of the Goods). The parties hereby
agree that the Companys obligations under these Terms are wholly
conditional upon such payment being made.
8.2 The Company may in its sole discretion, designate to the Customer
approved credit terms and in any such case (unless otherwise specified in
writing by the Company) the Customer shall pay each invoice submitted
by the Company:
(a) within 30 days of the date of the invoice notwithstanding that
property to the goods has not passed to the Customer; and
(b) in full, in pounds sterling and in cleared funds to a bank account
nominated in writing by the Company, and
time for payment shall be of the essence of the Contract.
8.3 In the event of the provision of the Services taking longer than one (1) contract, tort (including negligence), breach of statutory duty or
month to complete, the Company reserves the right to render interim otherwise shall in no circumstances exceed price paid for the Goods
accounts on a monthly basis (which are payable on the same terms as set and/or Services under the agreed Order.
out in clauses 8.2(a) and 8.2(b)). 10.3 Any and all liability of the Company under or in connection with this
8.4 Time of payment shall be of the essence of the contract. Without Contract shall cease with the expiry of the Warranty Period specified in
prejudice to any other rights it may have the Company reserved the right Clause 11.2.
to charge interest at HSBC Bank plc base rate plus 4% or at the rate 10.4 The limitations and exclusions of liability applying to the contractor under
specified from time to time under the provisions of Late Payment of this Contract shall likewise apply to the Companys directors, personnel,
Commercial Debts (Interest) Act 1988 (whichever is the higher) on all sub-contractors and sub-suppliers of any tier and their personnel.
overdue accounts and for the purposes of clauses 9 and 12 the full
purchase price for the Goods and/or Services shall include all interest
11 WARRANTY
payable hereunder.
11.1 In relation to Goods that are not Qualifying Goods the Company shall as
8.5 The Customer shall not in any circumstances be entitled to withhold
far as it is able pass on to the Customer the benefits of any
payment for monies due whether as a means of setting of monies owed
Manufacturers Warranties
to it by the Company or otherwise. The Customer shall pay all amounts
11.2 In relation to Qualifying Goods only and subject always to Clauses 11.3
due under the Contract in full without any deduction or withholding
and 11.4, the Company warrants that on completion of the supply of the
except as required by law and the Customer shall not be entitled to assert
Qualifying Goods and for the Warranty Period the Qualifying Goods shall
any credit, set-off or counterclaim against the Company in order to justify
be free from material defects in materials and workmanship. The
withholding payment of any such amount in whole or in part. The
Company shall at its sole discretion repair or replace or pay reasonable
Company may at any time, without limiting any other rights or remedies it
costs for the repair or replacement of the defective Qualifying Goods
may have, set off any amount owing to it by the Customer against any
which the Companys examination confirms are defective in accordance
amount payable by the Company to the Customer
with this Clause 11.
8.6 The Customer shall pay to the Company an amount equal to any costs
11.3 The parties acknowledge and agree that:
and expenses incurred (on a full indemnity basis) by the Company in
(a) the Customer shall make a full inspection of the Qualifying Goods
recovering from the Customer any monies due and payable by the
upon completion
Customer to the Company and for the purposes of clauses 9 and 12 the
(b) the Customer shall notify the Company with a written notice
full purchase price of the Goods and/or Services shall include all costs and
containing full particulars of any defects and the circumstances in
expenses payable hereunder.
which defects occurred, within 14 days of delivery in the case of
defects apparent upon inspection and in the case of defects not so
9 FAILURE TO PAY, CANCELLATION OR DEFERMENT
apparent provide such notification within a reasonable time of
9.1 For the purposes of this clause 9 an Intervening Event shall be any of
discovery (in any event within the Warranty Period); and
the following:
(c) the Customer shall return the defective Goods to the Company or its
(a) failure by the Customer to make any payment when it becomes
authorised service depot (as directed by the Company) and pay all
due;
transportation charges, duties and taxes associated with return and
(b) breach by the Customer of any of the Terms of the Contract;
subsequent redelivery of the Goods to the Customer; or
(c) the Customers proposal for or entry into any composition or
(d) if, at the Companys election, the Company arranged for a
arrangement with creditors;
technician to visit the Customers installation to repair or replace the
(d) the presentation against the Customer of any petition for a
defective Qualifying Goods, the Customer shall bear the expense of
bankruptcy order, administration order, winding-up order or similar
all transportation charged for the technician and his equipment,
process;
including any applicable duties and taxes, accommodation and living
(e) the appointment of an administrative receiver or receiver in respect
expenses and normal charges for the technicians time while
of the business of any part of the assets of the Customer;
travelling (save that the Customer shall not be liable for any charge
(f) the Company forming the reasonable opinion that the Customer has
in respect of the technicians time on site actually engaged in
become or is likely in the immediate future to become unable to pay
carrying out the repair or replacement of such defective Qualifying
his, her or its debts (adopting, in the case of a company, the
Goods).
definition of that term set out in section 123 of the Insolvency Act
(e) the Customer shall provide the Company with working access to
1986); and
examine the Qualifying Goods without costs to the Company; and
(g) any event occurs, or proceeding is taken, with respect to the
(f) the Customer shall take all appropriate steps to mitigate damage
Customer in any jurisdiction to which it is subject that has an effect
caused by the defective Qualifying Goods; and
equivalent or similar to any of the events mentioned in clause
(g) the Customer shall provide the Company with adequate time and
9.1(b) to clause 9.1(b) (inclusive).
opportunity in which to repair or replace any part of the defective
9.2 If there shall be an Intervening Event, the Company may within a
Qualifying Goods; and
reasonable time thereafter, defer or cancel any further provision of
11.4 The Company shall not be liable for the defective Qualifying Goods if:
Services, stop any Goods in transit and treat the Contract as determined
(a) the defect arises because the Customer failed to follow the
but without prejudice to its rights to the full purchase price for Services
Companys oral or written instructions as to use or maintenance of
rendered or Goods supplied (which shall become immediately due) and
the Qualifying Goods or (if there are none) good trade practice;
damages for any loss suffered in consequence of such determination.
(b) the defect arises as a result of the Company following any Third
9.3 Cancellation by the Customer will only be accepted at the discretion of the
Party Specification;
Company and in any case on condition that any costs or expenses
(c) the Customer or a third party alters or repairs the product of the
incurred by the Company up to the date of cancellation and all loss or
Qualifying Goods;
damage resulting in the Company by reason of such cancellation will be
(d) the defect is due to circumstances which existed before the transfer
paid by the Customer to the Company forthwith. Acceptance of such
of risk occurred and is not as a result of fair wear and tear,
cancellation will only be binding on the Company if in writing and signed
(e) the product of the Qualifying Goods have been subjected to
by a director of the Company.
improper use, accident or improper maintenance by the Customer
9.4 Any costs or expenses incurred by the Company due to suspension or
or a third party;
deferment of any Order by the Customer or in the event that the
(f) the Customer prevents the Company from remedying the defect.
Customer defaults in collecting, or giving instructions for the delivery of
(g) such Goods are not Qualifying Goods, in which instance, the
any goods or the performance of any services will be payable by the
Companys only obligation shall be to, insofar as it is able, to pass
Customer forthwith on demand.
on the benefit of the Manufacturers Warranty in accordance with
9.5 Without prejudice to the Companys other rights under this Clause 10, the
clause 11.1.
Company shall be entitled to suspend the Contract for a period of up to
11.5 The repair or replacement of defective goods during the Warranty Period
sixty days in the event an Intervening Event occurs. If the period of
in accordance with Clause 11.2 shall not as regards to such goods extend
suspension reaches sixty days the Company shall either end the
the period of warranty therein provided.
suspension or terminate the Contract.
11.6 The Customers remedies under this clause shall be in place and to the
exclusion of any other remedy to the Customer in relation to the defects
10 LIMITATION OF LIABILITY
(including latent defects) in the Services and any Goods including damage
10.1 Nothing in these Terms shall limit or exclude the Companys liability for:
arising therefrom (whether the claims are based in contract, tort,
(a) death or personal injury caused by its negligence, or the negligence
negligence, indemnity or any other legal theory whatsoever). Any and all
of its employees, agents or subcontractors (as applicable):
other warranties, terms and conditions, express or implied which may
(b) fraud or fraudulent misrepresentation;
have otherwise applied in relation to such matter are excluded to the
10.2 Subject to Clause 10.1:
extent allowed under law.
(a) the Company shall under no circumstances whatever be liable to the
11.7 Where the Company repairs or re-supplies Qualifying Goods in accordance
Customer, whether in contract, tort (including negligence), breach
with the foregoing provisions of this Clause 11 or otherwise, any time
of statutory duty, or otherwise, for any loss of profit, goodwill or
specified for delivery shall be extended for such period as the Company
business opportunity or any indirect or consequential loss arising
may reasonably require.
under or in connection with the Contract; and
(b) the Company shall bear no liability or any responsibility for any loss,
12 RETENTION OF TITLE
or damage of any nature due to or arising for any cause beyond its
12.1 Save in the case of any circumstances where the parties expressly agree
reasonable control
in writing to adopt incoterms in an International Supply Contract, and
(c) the Companys total liability to the Customer in respect of all losses
arising under or in connection with the Contract, whether in

Page 3 of 14
 subject to any agreement in writing by the Company, the risk in Goods
shall pass to the Customer on the relevant Delivery Date.
12.2 The following provisions shall, subject to clause 12.3 apply to all
Contracts and to all Goods which under the Contract the Company agrees
to supply to the Customer. No failure by the Company to enforce strict
compliances by the Customer with such provisions shall constitute a
waiver thereof and no termination of the Contract shall prejudice limit or
extinguish the Companys rights under this clause.
(a) Upon delivery of the Goods the Customer shall hold the Goods
solely as bailee for the Company and the Goods shall remain the
property of the Company until such time as the Customer shall have
paid to the Company and the Company shall have cleared funds for
the full purchase price of all Goods, whether under the Contract or
otherwise. Until this time the Company shall be entitled to recover
the Goods or any part thereof and, for the purpose of exercising
such rights, the Customer hereby grants a licence to the Company,
its employees and agents (together with appropriate transport) to
enter upon the Customers premises and any other location where
the Goods are situated and remove the Goods.
(b) The Customer is hereby licensed to agree to sell on the Goods on
condition that the Customer shall inform its customer of the
provisions of sub-clauses 12.2(a). The Customer acts as the
Companys bailee in respect of any such sale and shall immediately
upon receipt of the proceeds of sale, and whether or not payment
has become due under clause 8 remit to the Company the full
purchase price of the Goods sold on less any part thereof which has
already been paid and until such amount has been so remitted shall
hold such amount as trustee and agent for the Company.
(c) The Customer shall maintain an appropriate insurance in respect of
the Goods from the date or dates on which the risk therein passes
to the Customer. In the event of any loss or damage occurring
while the Goods remain the property of the Company, the Customer
shall immediately on receipt of the insurance monies, remit to the
Company the full purchase price of the Goods lost or damaged less
any part thereof which has already been paid and until such amount
has been so remitted shall hold such amount as trustee and agent
for the Company.
(d) The licences granted under this clause 12.2 shall be terminable
forthwith at any time upon notice by the Company to the Customer.
12.3 Where the parties expressly agree in writing to adopt incoterms for an
International Supply Contract, property in the Goods shall pass to the
Customer in accordance with the provision of the relevant incoterm
13 INTELLECTUAL PROPERTY
Unless otherwise agreed in writing by the Company any and all intellectual
property rights in the Services, any Goods and in any tooling and in any
drawings of other documentation supplied or produced by the Company shall
vest in and remain vested in the Company, the Customer agrees to execute any
documents the Company deems necessary to give effect to this clause. All
drawings, plans, specifications and method statements and related documents
are to be returned to the Company immediately on written request. The
Customer is not permitted to use (except for the purposes set out in the
Contract Specification or Order) or make copies of such documents without
having first obtained the consent of the Company in writing.
14 TOOLING
All tooling purchased or produced by the Company for the Contract shall be and
remain the property of the Company unless otherwise agreed in writing,
notwithstanding that the Customer may have made payment or part payment
therefor.
15 CONFIDENTIALITY
The Customer agrees that it and its employees and agents will keep
confidential all drawings and designs supplied by the Company and will not use,
copy or reproduce the same save as specifically authorised by the Company in
writing.
16 TEST AND MARKING
16.1 If the Company agrees to carry out any tests, certification or marking
shall be provided in respect of the Goods it shall be entitled to charge
therefor.
16.2 The Customer shall pay to the Company an amount equal to any costs
payable to third parties in respect of any tests, independent design review
or report carried out by that third party in respect of the goods at the
request of the Customer together with an administration fee (equal to
10% of the third party costs) in respect of the Company procuring the
same.
16.3 If the Company agrees that any tests shall be carried out in the presence
of the Customer or his representative the Company shall notify the
Customer of the date from which it is or will be ready to carry out such
tests. The Customer undertakes that he or his representative will, by
prior appointment, attend at the premises where the goods are situate
within 3 days after such date for the purpose of witnessing such tests and
agrees that in default of such attendance the Company may proceed with
the tests in his absence and he shall be bound by the results thereof.
17 USE AND SAFE HANDLING
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The Customer warrants that it will pass on to all third parties to whom it may
supply the goods or any of them all information as to the use and safe handling
of such goods as may have been provided to the Customer by the Company.
18 LAW AND JURISDICTION
The proper law of all Contracts shall be English law which shall govern in all
respects the construction and effect of such Contracts and of these Terms. The
Customer agrees that in the event of any dispute arising out of the Contract or
the performance thereof he will submit to the jurisdiction of the English Courts.
19 FORCE MAJEURE
20.1 Neither party shall be liable for any failure or delay in performing its
obligations under the Contract to the extent that such failure or delay is
caused by a Force Majeure Event. A Force Majeure Event means any
event beyond a party's reasonable control, which by its nature could not
have been foreseen, or, if it could have been foreseen, was unavoidable,
including but not limited to strikes, lock-outs or other industrial disputes
(whether involving its own workforce or a third party's), failure of energy
sources or transport network, acts of God, war, terrorism, riot, civil
commotion, interference by civil or military authorities, national or
international calamity, armed conflict, malicious damage, breakdown of
plant or machinery, nuclear, chemical or biological contamination, sonic
boom, explosions, collapse of building structures, fires, floods, storms,
earthquakes, loss at sea, epidemics or similar events, natural disasters or
extreme adverse weather conditions, or default of suppliers or
subcontractors.
20.2 Where the Company is delayed due to a Force Majeure Event in
accordance with this Clause 20 any time specified for delivery of the
goods or performance of the services shall the extended for such period
as the Company may reasonably require.
20 ASSIGNMENT
20.1 The Company may at any time assign, transfer, charge, subcontract or
deal in any other manner with all or any of its rights under the Contract
and may subcontract or delegate in any manner any or all of its
obligations under the Contract to any third party.
21.2 The Customer shall not, without the prior written consent of the Company,
assign, transfer, charge, subcontract or deal in any other manner with all
or any of its rights or obligations under the Contract.
21 NOTICES
21.1 Any notice or other communication given to a party under or in
connection with this Contract shall be in writing, addressed to that party
at its registered office (if it is a company) or its principal place of business
(in any other case) or such other address as that party may have
specified to the other party in writing in accordance with this clause, and
shall be delivered personally or sent by prepaid first-class post or other
next working day delivery service, or by commercial courier, fax.
21.2 A notice or other communication shall be deemed to have been received:
if delivered personally, when left at the registered address of the parties;
if sent by pre-paid first class post or other next working day delivery
service, at 9.00 am on the second Business Day after posting; if delivered
by commercial courier, on the date and at the time that the courier's
delivery receipt is signed; or, if sent by by fax, one Business Day after
transmission.
21.3 The provisions of this clause shall not apply to the service of any
proceedings or other documents in any legal action.
22 SEVERANCE
22.1 If any provision or part-provision of the Contract is or becomes invalid,
illegal or unenforceable, it shall be deemed modified to the minimum
extent necessary to make it valid, legal and enforceable. If such
modification is not possible, the relevant provision or part-provision shall
be deemed deleted. Any modification to or deletion of a provision or part-
provision under this clause shall not affect the validity and enforceability
of the rest of the Contract.
22.2 If any provision or part-provision of this Contract is invalid, illegal or
unenforceable, the parties shall negotiate in good faith to amend such
provision so that, as amended, it is legal, valid and enforceable, and, to
the greatest extent possible, achieves the intended commercial result of
the original provision.
23 WAIVER
A waiver of any right under the Contract or law is only effective if it is in writing
and shall not be deemed to be a waiver of any subsequent breach or default.
No failure or delay by a party in exercising any right or remedy under the
Contract or by law shall constitute a waiver of that or any other right or
remedy, nor prevent or restrict its further exercise of that or any other right or
remedy. No single or partial exercise of such right or remedy shall prevent or
restrict the further exercise of that or any other right or remedy.
24 THIRD PARTIES
A person who is not a party to the Contract shall not have any rights to enforce
its terms save that the Contract shall be for the benefit and enforceable by any
parent undertaking of the Company and any subsidiary undertaking of the
Company or of any such parent undertaking.
 PART II TERMS OF EQUIPMENT HIRE
THE CUSTOMERS ATTENTION IS DRAWN IN PARTICULAR TO THE PROVISIONS OF CLAUSE 12
1 DEFINITIONS AND INTERPRETATION
1.1 These terms and conditions shall apply to the hire of Equipment and
provision of any ancillary Services by the Company to a Customer.
1.2 In these Hire Terms:
(a) Business Day a day (other than a Saturday, Sunday or public
holiday) when banks in London are open for business;
(b) Commencement Date the date that the Customer takes Delivery of
the Equipment;
(c) Company means Quantum Controls Limited;
(d) Customer means the individual, firm, company or other party with
whom the Company contracts;
(e) Delivery the transfer of physical possession of the Equipment to the
Customer at the Site(s);
(f) Equipment the items of equipment specified in the Companys
confirmation of the Customers Order and/or (where applicable) the
Specification;
(g) Hire Period the period of hire as set out in clause 5 of the
Agreement;
(h) Hire Terms means these hire terms set out or referred to in the
Companys acknowledgment of Order
(i) Minimum Hire Period a period of two (2) weeks from the
Commencement Date or such other period as shall be specified the
Companys confirmation of the Customers Order and/or (where
applicable) the Specification;
(j) Normal Business Hours 8.00 am to 4.00 pm GMT on a Business
Day;
(k) Services any services that are provided by the Company to the
Customer that are ancillary to the hire of the Equipment as shall be
specified the Companys confirmation of the Customers Order and/or
(where applicable) the Specification
(l) Site(s) the location(s) where the Equipment shall be delivered and
located as specified in the Companys confirmation of the Customers
Order and/or (where applicable) the Specification;
(m) Specification the description or specification of the Equipment and
any Services provided in writing by the Company to the Customer;
(n) Order the Customers order for the Hire of Equipment as set out in
the Customers purchase order;
(o) Rental Payments the payments made by or on behalf of Customer
for hire of the Equipment;
(p) Total Loss the Equipment is, in the Companys reasonable opinion or
the opinion of its insurer(s), damaged beyond repair, lost, stolen,
seized or confiscated.
1.3 Clause headings shall not affect the interpretation of this Agreement.
1.4 A person includes a natural person, corporate or unincorporated body
(whether or not having separate legal personality) and that person's legal
and personal representatives, successors and permitted assigns.
1.5 A reference to a company shall include any company, corporation or other
body corporate, wherever and however incorporated or established.
1.6 Unless the context otherwise requires, words in the singular shall include
the plural and vice versa.
1.7 Unless the context otherwise requires, a reference to one gender shall
include a reference to the other genders.
1.8 A reference to a statute or statutory provision is a reference to it as it is in
force for the time being, taking account of any amendment, extension or re-
enactment, and includes any subordinate legislation for the time being in
force made under it.
1.9 A reference to writing or written includes faxes but not e-mail.
1.10 References to clauses are to the clauses of this Agreement.
1.11 Any words following the terms including, include, in particular or any similar
expression shall be construed as illustrative and shall not limit the sense of
the words, description, definition, phrase or term preceding those terms.
2 CONTRACT TERMS, VARIATIONS AND REPRESENTATIONS
2.1 The Order constitutes an offer by the Customer to hire Equipment in
accordance with these Hire Terms. The Customer is responsible for ensuring
that the terms of the Order and any applicable specification are complete
and accurate and that the Customer gives the Company any necessary
information relating to the Equipment and Services within a sufficient time
to enable the Company duly to perform its obligations in connection with
this Agreement.
2.2 No Order in pursuance of any quotation or otherwise shall be binding on the
Company unless and until:
(a) such Order is accepted in writing by the Company when the Company
confirms the Order has been accepted by sending an
acknowledgement of the Customers Order to the email address
provided by the Customer: or
(b) if earlier, the Company delivers Equipment to the Site.
Any contract made between the Company and the Customer shall be subject
to these Hire Terms and save as set out in these Hire Terms no
Page 5 of 14
representative or agent of the Company has authority to agree any terms or
make any representations inconsistent with them or to enter into any
contract except on the basis of them. Any such term representation on
contract will bind the Company only if in writing and signed by a director of
the Company.
2.3 A quotation from the Company is not an offer. Quotations are valid for 30
days from issue and subject to revision or withdrawal at any time before
acceptance of the Customers order by the Company
2.4 Unless otherwise agreed in writing by the Company, these Hire Terms shall
apply to the exclusion of any terms and conditions stipulated or referred to
by the Customer in its order, acknowledgement or acceptance or pre-
contract negotiations or any inconsistent terms implied by law or trade
custom, practice or course of dealing.
2.5 Where the Company has not given a written acknowledgment of Order,
these Hire Terms will nonetheless apply to the Agreement provided that the
Customer has had prior notice of them.
2.6 Where the Customer does not formally accept a quotation from the
Company but the Customer continues to instruct the Company to deliver the
Equipment to the Site, the Customers continued instructions will be deemed
to be acceptance of these Hire Terms
2.7 Any samples, drawings, descriptive matter, or advertising produced by the
Company and any descriptions or illustrations contained in the Company's
catalogues or brochures or website are produced for the sole purpose of
giving an approximate idea of the goods and services described in them.
They shall not form part of the contract or have any contractual force.
2.8 The Company reserves the right to correct any clerical or typographical error
made by its employees (whether in any sales literature, quotation, price list,
acceptance of offer, invoice or other document or information issued) at any
time without any liability on the part of the Company.
2.9 For the avoidance of doubt, except as set out in these Hire Terms, no
variation of the Agreement, including the introduction of any additional
terms shall be effective unless it is agreed in writing and signed by a
director of the Company.
2.10 The Agreement constitutes the entire agreement between the parties. The
Customer acknowledges that it has not relied on any statement, promise or
representation made or given by or on behalf of the Company which is not
set out in the Agreement.
2.11 Any advice or recommendation given by the Company or its employees or
agents to the Customer as to the storage, application or use of the
Equipment which is not confirmed in writing by the Company is followed or
acted upon entirely at the Customers own risk and the Customer
acknowledges that it does not rely on, and waives any claim for breach of,
any such unconfirmed representation (unless such representation is made
fraudulently).
3 SPECIFICATION
3.1 The Agreement shall include only such Equipment as described in the
Companys confirmation of the Customers Order and/or (where applicable)
the Specification. Unless specifically agreed in writing, all drawings
dimensions and weights submitted by the Company shall be taken to be
approximate and shall not form part of the Specification.
3.2 The Company reserves the right to make any changes in the Specification
which are required for the hire of the Equipment to conform with any
applicable statutory or regulatory or safety requirements or any other
changes which the Company may reasonably require, provided such
changes do not substantially affect the quality or performance of the
Equipment.
3.3 If the Company agrees in writing to hire the Equipment in accordance with
any documents or information provided by the Customer (Third Party
Specification) then:
(a) the suitability and accuracy of that Third Party Specification will be the
Customers responsibility;
(b) the Company reserves the right to amend any such Third Party
Specification if required by any applicable statutory or regulatory
requirements;
(c) the Customer will indemnify the Company against all infringement or
alleged infringement of any third partys intellectual property rights
and any loss, damage or expense which it may incur by reason of any
such infringement or alleged infringement in any country in connection
with such Third Party Specification;
(d) the Customer will indemnify the Company against any loss, damage or
expense in respect of any liability arising in any country by reason of
the goods being made or the services being provided to such Third
Party Specification; and
(e) the Customer undertakes to ensure that all necessary permissions or
consents (including those of third parties) are obtained in order to
permit the Company to supply Services in accordance with the
relevant Third Party Specification.
3.4 Clauses 3.3 shall survive termination of the Agreement.
4 EQUIPMENT HIRE
4.1 The Company shall hire the Equipment to the Customer for use at the
Site(s) subject to the terms and conditions of this Agreement.
4.2 The Company shall not, other than in the exercise of its rights under this
Agreement or applicable law, interfere with the Customer's quiet possession
of the Equipment.
5 RENTAL PERIOD
The Hire Period starts on the Commencement Date and shall continue for at
least the duration of the Minimum Hire Period. Following the expiry of the
Minimum Hire Period, the Agreement shall continue thereafter, until either
party gives to the other party notice to terminate (in accordance with the
remainder of this clause). When the Customer wishes to terminate the
Agreement after the Minimum Hire Period, they shall do so by contacting
the Companys Hire desk and any such termination of the Agreement will be
effective from when the Company issue an off Hire reference number to
the Customer. The Company will issue an off-hire reference number within
a reasonable time of the Customers notification but in any event no less
than three (3) Business Days from the same.
6 RENTAL PAYMENTS
6.1 The Company shall invoice the Customer for the Rental Payments at the end
of every four (4) week period, the first period commencing on the
Commencement Date and the Customer shall pay the invoices so submitted
in full no later than 28 calendar days after the date of invoice. The Rental
Payments shall be paid in British Pound Sterling and shall be made by direct
debit or such other payment method as shall be specified in the Companys
confirmation of the Customers Order and/or (where applicable) the
Specification.
6.2 The Rental Payments are exclusive of VAT and any other applicable taxes
and duties or similar charges which shall be payable by the Customer at the
rate and in the manner from time to time prescribed by law.
6.3 All payments to be made by either party under this Agreement shall be
made without withholding or set-off on account of disputes, counterclaims
or for any other reason whatsoever.
6.4 If the Customer fails to pay any Rental Payments or any other sums payable
under this Agreement by the due date for payment under this Agreement
then, without limiting the Company's rights under clause 13.1, the Customer
shall pay interest on such sums for the period from and including the due
date of payment up to the actual date of payment, whether before or after
judgment. The interest shall be paid at the rate of four per cent (4%) per
annum above the base rate from time to time of HSBC Bank plc.
6.5 Unless otherwise expressly agreed in writing, the Rental Payments have
been calculated on basis that any hire services are capable of being
performed to an agreed programme with uninterrupted access to the Site
during the Normal Business Hours and that the Site conforms to any
required standards specified in the Specification. In the event the Customer
requires performance of the Services outside Normal Business Hours or the
Site does not conform to the standards specified, any additional costs or
expenses incurred by the Company (including but not restricted to the
supply of any necessary services, waiting and traveling time) shall be paid
by the Customer to the Company within 28 calendar days of the date of the
Companys invoice or demand for payment.
6.6 All items ordered in addition to those identified in the Specification will be
charged for in addition to the Rental Payments as will the costs of all tests,
alterations, additions and all other work undertaken at the request of the
Customer but not identified in the Specification. Those additional costs will
be calculated by the Company having regard to the rates and prices set out
in its quotation or in the Specification or as otherwise agreed with the
Customer and will be paid for by the Customer within 28 days from the date
of the Companys invoice or demand for payment.
7 DELIVERY AND INSTALLATION
7.1 Delivery of the Equipment shall be made by the Company. The Company
shall use all reasonable endeavours to effect Delivery by the date and time
agreed between the parties but the dates and times shall be approximate
only and time of delivery shall not be of the essence of the Agreement. Title
and risk shall transfer in accordance with clause 8 of this Agreement. The
Customer hereby grants a licence to the Company, its employees and sub-
contractors (together with appropriate transport) to enter upon the
Customers premises for the purpose of effecting Delivery and, where
specified in the Term Sheet, installing the Equipment.
7.2 If the Customer extends or delays the performance of the Services or fails
to take delivery of any Equipment at the agreed time or (if no time is
agreed) within a reasonable time then the Customer shall indemnify the
Company against all loss (including loss of profit), costs (including the cost
of storage and all labour and materials used), damages, charges or expense
suffered or incurred by the Company as a result of such extension, delay or
failure.
7.3 The Customer shall be responsible for the unobstructed access and, unless
otherwise agreed in writing, for unloading and loading of the Equipment at
the Site, and any personnel supplied by the Company for such unloading
and/or loading shall be deemed to be under the direction and control of the
Customer. Such personnel shall for all purposes in connection with their
employment in the loading and/or unloading shall be regarded as the
servants or agents of the Customer who alone shall be responsible for all
claims arising in connection with unloading and or loading of the Equipment
by, or with the assistance of, such personnel.
7.4 The Customer is deemed to have knowledge of the Site and warrants that
the condition of the Site or the place of delivery is suitable for the use of
such Equipment. The Customer is responsible for the protection of, and
Page 6 of 14
liable for any damage to, any underground, surface or above ground
services and utilities including, but not limited to cables, ducts, water pipes
and gas lines, and any pavements, bridges, tunnels and roadways on or
adjacent to the Site and the Customer shall liaise as necessary and comply
with all requirements of the relevant statutory authority or similar body.
7.5 Where specified in the Companys confirmation of the Customers Order
and/or (where applicable) the Specification, the Company shall install the
Equipment at the Site(s). The Customer shall procure that a duly authorised
representative of the Customer shall be present at the installation of the
Equipment. Acceptance by such representative of installation shall constitute
conclusive evidence that the Customer has examined the Equipment and
has found it to be in good condition, complete and fit in every way for the
purpose for which it is intended. If required by the Company, the
Customer's duly authorised representative shall sign a receipt confirming
such acceptance.
7.6 To facilitate Delivery and installation, except where otherwise stated in the
Specification, the Customer shall at its sole expense provide all requisite
materials, facilities, access and suitable working conditions to enable
Delivery and installation to be carried out safely and expeditiously. The
Customer shall ensure that its premises and all plant and equipment which
is used by the Companys employees or sub-contractors or with which they
may come into contact or to which they may be exposed complies with the
Health and Safety at Work Act 1974, all relevant statutory provisions (as
defined in that Act) and all other obligations imposed by statute and
common law relating to health and safety and will indemnify the Company
against any loss, damage or expense in respect of any failure by the
Customer to comply with its obligations.
7.7 Unless notification in writing to the contrary is received by the Company
from the Customer within twenty four hours of the Equipment being
delivered and installed at the Site, the Equipment shall be deemed to be in
good order, save for either an inherent fault or a fault not ascertainable by
reasonable examination, in accordance with terms of the Agreement and to
the Customers satisfaction.
8 TITLE, RISK AND INSURANCE
8.1 The Equipment shall at all times remain the property of the Company, and
the Customer shall have no right, title or interest in or to the Equipment
(save the right to possession and use of the Equipment subject to the terms
and conditions of this Agreement).
8.2 The risk of loss, theft, damage or destruction of the Equipment shall pass to
the Customer on Delivery. The Equipment shall remain at the sole risk of the
Customer during the Hire Period and any further term during which the
Equipment is in the possession, custody or control of the Customer (Risk
Period) until such time as the Equipment is redelivered to the Company.
During the Hire Period and the Risk Period, the Customer shall, at its own
expense, obtain and maintain the following insurances:
(a) insurance of the Equipment to a value not less than its full
replacement value comprehensively against all usual risks of loss,
damage or destruction by fire, theft or accident, and such other risks
as the Company may from time to time nominate in writing;
(b) insurance for such amounts as a prudent owner or operator of the
Equipment would insure for, or such amount as the Company may
from time to time reasonably require, to cover any third party or public
liability risks of whatever nature and however arising in connection
with the Equipment; and
(c) insurance against such other or further risks relating to the Equipment
as may be required by law, together with such other insurance as the
Company may from time to time consider reasonably necessary and
advise to the Customer.
8.3 All insurance policies procured by the Customer shall be endorsed to provide
the Company with at least twenty (20) Business Days' prior written notice of
cancellation or material change (including any reduction in coverage or
policy amount) and shall upon the Company's request name the Company
on the policies as a loss payee in relation to any claim relating to the
Equipment. The Customer shall be responsible for paying any deductibles
due on any claims under such insurance policies.
8.4 The Customer shall give immediate written notice to the Company in the
event of any loss, accident or damage to the Equipment or arising out of or
in connection with the Customer's possession or use of the Equipment.
8.5 If the Customer fails to effect or maintain any of the insurances required
under this Agreement, the Company shall be entitled to effect and maintain
the same, pay such premiums as may be necessary for that purpose and
recover the same as a debt due from the Customer.
8.6 The Customer shall, on demand, supply copies of the relevant insurance
policies or other insurance confirmation acceptable to the Company and
proof of premium payment to the Company to confirm the insurance
arrangements.
9 MAINTENANCE
9.1 When the Equipment is hired which is to be operated without the
Companys engineer or operator any breakdown or the unsatisfactory
working of any part of the Equipment must be notified immediately to the
Company. Any claim for breakdown time will only be considered from the
time and date of notification.
9.2 The Customer shall not repair the Equipment or permit the Equipment to be
repaired by anyone other than the Company or any agent or contractor
authorised by them in writing.
9.3 The Customer shall be responsible for all expense involved arising from any
breakdown and all loss or damage incurred by the Company due to the
Customers negligence, misdirection or misuse of the Equipment, whether
by the Customer or his servants, and for the payment of hire during the
period the Equipment is necessarily idle due to such breakdown, loss or
damage. The Customer is responsible for the cost of spares and/or repairs
due to theft, loss or vandalism of the Equipment.
9.4 Without prejudice to the generality of clause 9.3, the Company shall have
no responsibility or liability for any stoppages or other failure or
unavailability of the Equipment other than for any failure or unavailability
that arises as a direct result of the Companys negligence. Without prejudice
to the generality of the foregoing sentence, the Company shall not have any
responsibility or liability for any failure or unavailability of the Equipment
that arises as a result of causes outside the Companys control, including
bad weather or ground conditions nor shall the Company be responsible for
the cost or expense of recovering any Plant from soft ground.
10 CUSTOMERS RESPONSIBILITIES
10.1 The Customer shall during the term of this Agreement:
(a) ensure that the Equipment is kept and operated in a suitable
environment, used only for the purposes for which it is designed
within the manufacturers rated capacity, and operated in a proper
manner in accordance with any operating instructions provided by the
Company or the manufacturer;
(b) take such steps (including compliance with all safety and usage
instructions provided by the Company) as may be necessary to ensure,
so far as is reasonably practicable, that the Equipment is at all times
safe and without risk to health when it is being set, used, cleaned or
maintained by a person at work;
(c) subject always to clause 9.2 maintain at its own expense the
Equipment in good and substantial repair in order to keep it in as good
an operating condition as it was on the Commencement Date
(including replacing any parts or carrying out any remedial work that is
expressly directed by the Company or any agent or contractor
authorised by them in writing);
(d) obtain at its own cost all consents required to enable the Company to
carry out and complete the hire of the Equipment and the Customer
must comply with any conditions contained in the Consents relating to
the Equipment Hire and the supply of Services or the Site
(e) make no alteration to the Equipment and shall not remove any
existing component(s) from the Equipment without the prior written
consent of the Company;
(f) take all reasonable steps to acquainted with the state and condition of
the Equipment and the keep the Company fully informed of all
material matters relating to the Equipment. If such Equipment is
continued in use in an unsafe or unsatisfactory state or environment,
the Customer shall be solely responsible for any damage, loss, cost,
expense or accidents whether directly or indirectly arising therefrom;
(g) keep the Equipment at all times at the Site(s) and shall not move or
attempt to move any part of the Equipment to any other location
without the Company's prior written consent;
(h) permit the Company or its duly authorised representatives, agents or
insurers to inspect, test, repair or replace the Equipment at all
reasonable times and for such purpose to enter upon the Site(s) or
any premises at which the Equipment may be located, and shall grant
reasonable access and facilities for such inspection. Title and property
in all substitutions, replacements, renewals made in or to the
Equipment shall vest in the Company immediately upon installation;
(i) provide all sufficient and accurate information requested by the
Company in a timely fashion to enable the proper performance of the
hire of the Equipment by the Company so as not to delay or disrupt
the Company in performing its obligations under the Agreement. The
Company shall be entitled to rely on the accuracy and sufficiency of all
information provided to it by the Customer, and to make assumptions
on the basis of such information, when hiring the Equipment;
(j) maintain operating and maintenance records of the Equipment and
make copies of such records readily available to the Company,
together with such additional information as the Company may
reasonably require;
(k) not, without the prior written consent of the Company, part with
control of (including for the purposes of repair or maintenance), sell or
offer for sale, underlet or lend the Equipment or allow the creation of
any mortgage, charge, lien or other security interest in respect of it;
(l) not without the prior written consent of the Company, attach the
Equipment to any land or building so as to cause the Equipment to
become a permanent or immovable fixture on such land or building. If
the Equipment does become affixed to any land or building then the
Equipment must be capable of being removed without material injury
to such land or building and the Customer shall repair and make good
any damage caused by the affixation or removal of the Equipment
from any land or building and indemnify the Company against all
losses, costs or expenses incurred as a result of such affixation or
removal;
(m) not do or permit to be done any act or thing which will or may
jeopardise the right, title and/or interest of the Company in the
Equipment and, where the Equipment has become affixed to any land
or building, the Customer must take all necessary steps to ensure that
the Company may enter such land or building and recover the
Page 7 of 14
Equipment both during the term of this Agreement and for a
reasonable period thereafter, including by procuring from any person
having an interest in such land or building, a waiver in writing and in
favour of the Company of any rights such person may have or acquire
in the Equipment and a right for the Company to enter onto such land
or building to remove the Equipment;
(n) not suffer or permit the Equipment to be confiscated, seized or taken
out of its possession or control under any distress, execution or other
legal process, but if the Equipment is so confiscated, seized or taken,
the Customer shall notify the Company and the Customer shall at its
sole expense use its best endeavours to procure an immediate release
of the Equipment and shall indemnify the Company on demand
against all losses, costs, charges, damages and expenses incurred as a
result of such confiscation;
(o) not use the Equipment for any unlawful purpose;
(p) to the extent that the Equipment is involved in any accident resulting
in injury to persons or damage to property, immediate notification
must be given by the Customer to the Company by telephone and
confirmed in writing to the Owner no later than 24 hours after such
telephone notification. In relation to any claim in respect of which the
Customer is not bound to fully indemnify the Company, no admission
of liability, offer, promise of payment or indemnity shall be made by
the Customer without the Owners prior written permission;
(q) ensure that at all times the Equipment remains identifiable as being
the Company's property and wherever possible shall ensure that a
visible sign to that effect is attached to the Equipment;
(r) deliver up the Equipment at the end of the Hire Period or on earlier
termination of this Agreement at such address as the Company
requires, or if necessary allow the Company or its representatives
access to the Site(s) or any premises where the Equipment is located
for the purpose of removing the Equipment; and
(s) not do or permit to be done anything which could invalidate the
insurances referred to in clause 8.
10.2 The Customer acknowledges that the Company shall not be responsible for
any loss of or damage to the Equipment arising out of or in connection with
any negligence, misuse, mishandling of the Equipment or otherwise caused
by the Customer or its officers, employees, agents and contractors, and the
Customer undertakes to indemnify the Company on demand against the
same, and against all losses, liabilities, claims, damages, costs or expenses
of whatever nature otherwise arising out of or in connection with any failure
by the Customer to comply with the terms of this Agreement.
11 WARRANTY
11.1 Subject always to Clauses 11.3 and 11.4, the Company warrants that on
completion of the supply of the Equipment and for the duration of the Hire
Period (Warranty Period) the Equipment shall be free from material
defects in materials and workmanship. The Company shall at its sole
discretion repair or replace or pay reasonable costs for the repair or
replacement of the defective Equipment which the Companys examination
confirms are defective in accordance with this Clause 11.3.
11.2 The parties acknowledge and agree that:
(a) the Customer shall make a full inspection of the Equipment upon
completion of delivery
(b) the Customer shall notify the Company with a written notice
containing full particulars of any defects and the circumstances in
which defects occurred, within twenty four (24) hours of delivery or
installation in the case of defects apparent upon inspection and in the
case of defects not so apparent provide such notification within a
reasonable time of discovery (in any event within the Warranty
Period); and
(c) the Customer shall provide the Company with working access to
examine the Equipment without costs to the Company; and
(d) the Customer shall take all appropriate steps to mitigate damage
caused by the defective Equipment; and
(e) the Customer shall provide the Company with adequate time and
opportunity in which to repair or replace any part of the defective
Equipment; and
11.3 The Company shall not be liable for the defective Equipment if:
(a) the defect arises because the Customer failed to follow the Companys
oral or written instructions as to use or maintenance of the Equipment
or (if there are none) good trade practice;
(b) the defect arises as a result of the Company following any Third Party
Specification;
(c) the Customer or a third party alters or repairs the Equipment;
(d) the defect is due to circumstances which existed before the transfer of
risk occurred and is not as a result of fair wear and tear,
(e) the Equipment has been subjected to improper use, accident or
improper maintenance by the Customer or a third party;
(f) the Customer prevents the Company from remedying the defect.
11.4 The repair or replacement of defective goods during the Warranty Period in
accordance with Clause 11.1 shall not as regards to such goods extend the
period of warranty therein provided.
11.5 The Customers remedies under this clause shall be in place and to the
exclusion of any other remedy to the Customer in relation to the defects
(including latent defects) in Equipment including damage arising therefrom
(whether the claims are based in contract, tort, negligence, indemnity or
any other legal theory whatsoever). Any and all other warranties, terms and
conditions, express or implied which may have otherwise applied in relation
to such matter are excluded to the extent allowed under law.
11.6 Where the Company repairs or re-supplies the Equipment in accordance
with the foregoing provisions of this Clause 11.1 or otherwise, any time
specified for delivery shall be extended for such period as the Company may
reasonably require.
12 LIABILITY AND INDEMNITY
12.1 The Company shall have no liability or any responsibility for any loss, or
damage of any nature due to or arising from any cause beyond its
reasonable control. Without prejudice to clause 12.2, the Company's
maximum aggregate liability for breach of this Agreement (including any
liability for the acts or omissions of its employees, agents and
subcontractors), whether arising in contract, tort (including negligence),
misrepresentation or otherwise, shall in no circumstances exceed the lesser
of:
(a) a sum equal to 5,000 or;
(b) a sum equal to the Rental Payments paid or due and payable to the
Company under this Agreement (in the period of three (3) months
prior to the first event giving rise to the claim or in the first three (3)
months of the Agreement if the event giving rise to the claim occurs in
the first three (3) months.
12.2 Nothing in this Agreement shall exclude or in any way limit:
(a) either party's liability for death or personal injury caused by its own
negligence;
(b) either party's liability for fraud or fraudulent misrepresentation; or
(c) any other liability which cannot be excluded by law.
12.3 This Agreement sets forth the full extent of the Company's obligations and
liabilities in respect of the Equipment and its hiring. In particular, there are
no conditions, warranties or other terms, express or implied, including as to
quality, fitness for a particular purpose or any other kind whatsoever, that
are binding on the Company except as specifically stated in this Agreement.
Any condition, warranty or other term concerning the Equipment which
might otherwise be implied into or incorporated within this Agreement,
whether by statute, common law or otherwise, is expressly excluded.
12.4 Without prejudice to clause 12.2, nothing in this Agreement shall make the
Company liable under this Agreement for any:
(a) loss of profit;
(b) loss of revenue;
(c) loss of business; or
(d) indirect or consequential loss or damage,
in each case, however caused, even if foreseeable.
12.5 The Customer is responsible for choosing the Equipment and for making
sure that it is fit and suitable for its needs. The Company does not,
therefore, provide any advice, assurance or representation about the
Equipment, its quality or suitability for the Customers needs. Nor does this
Agreement include any guarantees or warranties about the quality or
suitability of the Equipment. The Company will not be liable to the
Customer for any conditions, warranties, terms, representations or liabilities
in respect of the Equipment.
12.6 Without prejudice to the other indemnities granted by the Customer in
favour of the Company under this Agreement, the Customer will indemnify
the Company against:
(a) all loss, actions, claims, demands, proceedings (whether criminal or
civil), costs, legal expenses (on a full indemnity basis), insurance
premiums and calls, liabilities, judgements, damages or other
sanctions whenever arising, directly or indirectly from the Customers
failure or alleged failure to perform its obligations under this
Agreement;
(b) any loss, injury or damage suffered by any person (including without
limitation the Company) because of the presence or use of the
Equipment;
(c) the Company exercising any right in respect of the Equipment, its
ownership, or its hiring.
13 TERMINATION
13.1 The Company may, without prejudice to any other right or remedy which
may be available to it, terminate this Agreement immediately by written
notice to the Customer if:
(a) the Customer defaults in any of its payment obligations;
(b) the Customer commits a material breach of this Agreement which
breach is irremediable, or which breach (if remediable) is not remedied
within ten (10) Business Days after the service of written notice from
the Company requiring it to do so;
(c) the Customer suspends, or threatens to suspend, payment of its debts
or is unable to pay its debts as they fall due or admits inability to pay
its debts or is deemed unable to pay its debts within the meaning of
section 123 of the Insolvency Act 1986; or
(d) the Customer commences negotiations with all or any class of its
creditors with a view to rescheduling any of its debts, or makes a
proposal for or enters into any compromise or arrangement with its
creditors; or
(e) a petition is filed, a notice is given, a resolution is passed, or an order
is made, for or in connection with the winding up of the Customer
other than for the sole purpose of a scheme for a solvent
amalgamation of the Customer with one or more other companies or
the solvent reconstruction of the Customer; or
(f) an application is made to court, or an order is made, for the
appointment of an administrator, or if a notice of intention to appoint
Page 8 of 14
an administrator is given or if an administrator is appointed, over the
Customer; or
(g) the holder of a qualifying floating charge over the assets of the
Customer has become entitled to appoint or has appointed an
administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the
Customer or a receiver is appointed over the assets of the Customer;
or
(i) a creditor or encumbrancer of the Customer attaches or takes
possession of, or a distress, execution, sequestration or other such
process is levied or enforced on or sued against, the whole or any part
of the Customer's assets and such attachment or process is not
discharged within 14 days; or
(j) any event occurs, or proceeding is taken, with respect to the Customer
in any jurisdiction to which it is subject that has an effect equivalent or
similar to any of the events mentioned in clause 13.1(c) to clause
13.1(i) (inclusive); or
(k) the other party suspends or ceases, or threatens to suspend or cease,
carrying on all or a substantial part of its business
(l) there is a change of control of the Customer (within the meaning of
section 1124 of the Corporation Tax Act 2010); or
(m) the Customer, being an individual, dies or, by reason of illness or
incapacity (whether mental or physical), is incapable of managing his
or her own affairs or becomes a patient under any mental health
legislation; or
(n) the Customer breaches the terms of any other Agreement it has with
the Company.
13.2 The Customer may end the Minimum Hire Period early subject to it giving
the Company written notice and subject to:
(a) the Customer facilitating the Company repossessing the Equipment in
accordance with clause 14.1(a);
(b) the Customer paying the amounts set out at clauses 14.1(b) and 14.2;
13.3 This Agreement shall automatically terminate if a Total Loss occurs in
relation to the Equipment.
14 EFFECT OF TERMINATION
14.1 Upon termination of this Agreement, however caused:
(a) the Company's consent to the Customer's possession of the Equipment
shall terminate and the Company may, by its authorised
representatives, without notice and at the Customer's expense, retake
possession of the Equipment and for this purpose may enter the
Site(s) or any premises at which the Equipment is located; and
(b) without prejudice to any other rights or remedies of the Customer, the
Customer shall pay to the Company on demand:
(i) all Rental Payments due up to the date of termination and other
sums due but unpaid at the date of such demand together with
any interest accrued pursuant to clause 6.4. For the avoidance
of doubt, if the date of termination of the Agreement occurs part
way through a four (4) week period, the Company shall pay the
applicable proportion of the Rental Payments for that four (4)
week period on a pro rata temporis basis;
(ii) any costs and expenses incurred by the Company in recovering
the Equipment and/or in collecting any sums due under this
Agreement (including any storage, insurance, repair, transport,
legal and remarketing costs);
(iii) any costs and expenses incurred by the Company in remedying
any damage to the Equipment caused by the Customers default
(normal wear and tear excepted) Any such damage will be
notified to the Customer by the Company within ten (10)
Business Days of recovery of the Equipment.
(c) the Customers obligations under clause 10 shall continue until the
Equipment is returned to the Company.
14.2 Upon termination of this Agreement pursuant to clause 13.1 or pursuant to
clause 13.2, without prejudice to any other rights or remedies of the
Company, the Customer shall pay to the Company on demand a sum equal
to the whole of the Rental Payments that would (but for the termination)
have been payable if the Agreement had continued from the date of such
demand to the end of the Minimum Hire Period, less such discount as the
company shall reasonably apply to such sums (in its discretion) to account
for accelerated payment.
14.3 The sums payable pursuant to clause 14.2 shall be agreed compensation for
the Company's loss and shall be payable in addition to the sums payable
pursuant to clause 14.1(b). The Company and the Customer confirm that
any sums calculable and payable pursuant to clause 14.2 represent a
genuine pre-estimate of the Companys loss and not a penalty.
14.4 Termination of this Agreement shall be without prejudice to the rights and
obligations of the parties accrued up to the date of termination.
15 FORCE MAJEURE
15.1 Neither party shall be liable to the other, or be deemed to be in breach of
this Agreement, by reason of any delay in performing, or failure to perform,
any of its obligations under this Agreement if the delay or failure was
beyond that party's reasonable control (including without limitation, fire,
flood, explosion, epidemic, riot, civil commotion, any strike, lockout or other
industrial action, act of God, war, warlike hostilities or threat of war,
terrorist activities, accidental or malicious damage and any prohibition or
 restriction by any government or other legal authority which affects this
Agreement and which is not in force on the date of this Agreement).
15.2 A party claiming to be unable to perform its obligations under this
Agreement (either on time or at all) in any of the circumstances set out in
clause 15.1 shall notify the other party of the nature and extent of the
circumstances in question as soon as practicable.
15.3 This clause 15.1 shall cease to apply when such circumstances have ceased
to have effect on the performance of this Agreement and the party affected
shall give notice to the other party that the circumstances have ceased.
15.4 If any circumstance relied on by either party for the purposes of this clause
15.1 continues for more than one month, the other party shall be entitled to
terminate this Agreement by giving one month's notice.
16 GENERAL
16.1 This Agreement (and any document referred to in it) constitutes the whole
Agreement between the parties and supersedes all previous Agreements
between the parties relating to its subject matter.
16.2 Each party acknowledges that, in entering into this Agreement (and any
document referred to in it), it has not relied on, and shall have no right or
remedy in respect of, any statement, representation, assurance or warranty
(whether made negligently or innocently) other than as expressly set out in
this Agreement. Each party agrees that its only liability in respect of those
representations and warranties that are set out in this Agreement (whether
made innocently or negligently) shall be for breach of contract. Nothing in
this clause shall limit or exclude any liability for fraud
16.3 Any general description contained in the Companys catalogues or other
advertising material or otherwise or on the Companys website shall not form
a representation or be part of the contract.
16.4 No amendment or variation of this Agreement shall be effective unless it is
in writing and signed by the parties (or their authorised representatives).
16.5 Unless otherwise agreed in writing by the Company any and all intellectual
property rights in the Equipment and in any tooling and in any drawings of
other documentation supplied or produced by the Company (whether as
part of the Specification or otherwise) shall vest in and remain vested in the
Company, the Customer agrees to execute any documents the Company
deems necessary to give effect to this clause 16.5. All drawings, plans,
specifications and method statements and related documents are to be
returned to the Company immediately on request. The Customer is not
permitted to use such documents for any purpose other than as expressly
envisaged by this Agreement and is not permitted to make copies of such
documents without having first obtained the consent of the Company in
writing.
16.6 If a provision of this Agreement (or part of any provision) is found illegal,
invalid or unenforceable, the provision shall apply with the minimum
modification necessary to make it legal, valid and enforceable.
16.7 If any provision of this Agreement (or part of any provision) is found by any
court or other authority of competent jurisdiction to be invalid, illegal or
unenforceable, that provision or part-provision shall, to the extent required,
be deemed not to form part of this Agreement, and the validity and
enforceability of the other provisions of this Agreement shall not be
affected.
16.8 The Company may at any time assign, transfer, mortgage, charge or deal in
any other manner with any or all of its rights and obligations under this
Agreement. The Company may sub-contract or delegate in any manner any
or all of its obligations under this Agreement to any third party or agent.
16.9 The Customer shall not, without the prior written consent of the Company,
assign, transfer, charge or deal in any other similar manner with this
Agreement or its rights or any part of them under this Agreement, sub-
contract any or all of its obligations under this Agreement, or purport to do
any of the same.
16.10 Each party that has rights under this Agreement is acting on its own behalf
and not for the benefit of another person.
16.11 The parties declare that they each have the right, power and authority and
have taken all action necessary to execute and deliver and to exercise their
rights and perform their obligations under this Agreement.
16.12 No failure or delay by the Company to exercise any right or remedy
provided under this Agreement or by law shall constitute a waiver of that or
any other right or remedy, nor shall it preclude or restrict the further
exercise of that or any other right or remedy. No single or partial exercise of
such right or remedy shall preclude or restrict the further exercise of that or
any other right or remedy.
16.13 A person who is not a party to this Agreement shall not have any rights
under or in connection with it by virtue of the Contracts (Rights of Third
Parties) Act 1999.
16.14 The rights of the parties to terminate, rescind or agree any variation, waiver
or settlement under this Agreement are not subject to the consent of any
person that is not a party to this Agreement
Page 9 of 14
16.15 Except as expressly provided, nothing in this Agreement is intended to, or
shall be deemed to, establish any partnership or joint venture between the
parties, constitute either party the agent of the other, nor authorise a party
to make or enter into any commitments for or on behalf of the other party
16.16 This Agreement may be executed in any number of counterparts, each of
which when executed and delivered shall constitute an original of this
Agreement, but all the counterparts shall together constitute the same
Agreement.
16.17 Where the Customer is a partnership, all obligations expressed to be given
or entered into by the Customer or resulting from the execution of or breach
of the provisions of this shall be deemed to be given undertaken or entered
into by them jointly and severally.
17 CONFIDENTIALITY
17.1 Each party undertakes that it shall not at any time during this Agreement
and for a period of five years after termination of this Agreement, disclose
to any person any confidential information concerning the business, affairs,
customers, clients or companies of the other party, except as provided by
clause 17.2 and 17.3.
17.2 Each party may disclose the other party's confidential information:
(a) to those of its employees, officers, representatives or advisers who
need to know such information for the purpose of carrying out the
party's obligations under this Agreement. Each party shall ensure that
its employees, officers, representatives or advisers to whom it
discloses the other party's confidential information comply with this
clause 17; and
(b) as may be required by law, court order or any governmental or
regulatory authority.
17.3 The Company may disclose confidential information to any member of the
group of companies to which it belongs.
17.4 No party shall use any other party's confidential information for any
purpose other than to perform its obligations under this Agreement.
18 NOTICES
18.1 Any notice or other communication to be given under this Agreement shall
be in writing and in the English language and may be delivered by hand or
sent by pre-paid post (by airmail post if to an address outside the country of
posting) or fax to:
(a) in the case of the Company, to Quantum Controls Limited Quantum
House, 6A Dukesway, Prudhoe, Northumberland, NE42 6PQ (fax
number 01661 833 868); and
(b) in the case of the Customer, to the address and fax specified in the
Companys confirmation of the Customers Order and/or (where
applicable) the Specification,
or (such other address as a party shall notify to the other from time to time
and in each case, marked for the attention of the Managing Director in
relation to the Company and Managing Director in relation to the
Customer.
18.2 Any notice or document shall be deemed served (a) if delivered by hand, at
the time of delivery unless delivered after 5.00 pm GMT in which case they
shall be given on the next Business Day (b) if posted, two Business Days
after posting (five Business Days if sent by airmail post) and (c) if sent by
fax, at the time of transmission printed on the transmission confirmation
sheet provided that an error free transmission report has been received by
the sender and if the time of transmission is after 5.00 pm GMT on a
Business Day or at any time on a day that is not a Business Day the notice
shall be deemed to have been received at 9.00 am GMT on the next
Business Day.
18.3 In proving the service of any notice it will be sufficient to prove, in the case
of a letter, that such letter was properly addressed, stamped and placed in
the post and, in the case of a fax, that such fax was duly dispatched to a
current fax number of the addressee.
18.4 Neither party may use email as a valid means of serving on the other party
any (a) notice of breach of this Agreement; and (b) legal or court document
including the service, delivery or notification of any claim form, notice,
order, judgement of other document relating to or in connection with any
proceedings, suit or action arising out of or in connecting with this
Agreement.
19 GOVERNING LAW AND JURISDICTION
19.1 This Agreement and any dispute or claim arising out of or in connection with
it or its subject matter or formation (including non-contractual disputes or
claims) shall be governed by and construed in accordance with English law.
19.2 The parties irrevocably agree that the courts of England and Wales shall
have non-exclusive jurisdiction to settle any dispute or claim that arises out
of or in connection with this Agreement or its subject matter or formation
(including non-contractual disputes or claims).
 PART III TERMS AND CONDITIONS OF SUPPLY OF MAINTENANCE SERVICES
THE CUSTOMERS ATTENTION IS DRAWN IN PARTICULAR TO THE PROVISIONS OF CLAUSE 9
1 DEFINITIONS AND INTERPRETATION
1.1 These terms and conditions shall apply to the supply of Maintenance
Services by the Company to a Customer.
1.2 In these Maintenance Terms:
(a) Additional Services any Corrective Maintenance and/or any
Excluded Maintenance performed by the Company under this
Agreement;
(b) Additional Services Fees the fees payable in consideration of the
provision of any Additional Services, which shall be calculated at the
Additional Services Rates;
(c) Additional Service Rates the rates set out in box 8, as those rates
are amended from time to time in accordance with the terms of this
Agreement;
(d) Business Day a day (other than a Saturday, Sunday or public
holiday) when banks in London are open for business;
(e) Charges together the Maintenance Fees, the Additional Services
Fees and the Payment Fee;
(f) Commencement Date means the date that the Company is to
commence supplying the Maintenance Services specified the
Companys confirmation of the Customers Order and/or (where
applicable) the Specification;
(g) Company means Quantum Controls Limited;
(h) Confidential Information all confidential information (however
recorded or preserved) disclosed by a party or its employees, officers,
representatives, advisers or subcontractors involved in the provision
or receipt of the Maintenance Services, who need to know the
confidential information in question (Representatives) to the other
party and that party's Representatives in connection with this
Agreement, which is either labelled as such or else which should
reasonably be considered as confidential because of its nature and
the manner of its disclosure;
(i) Corrective Maintenance means:
(i) making any adjustments to the Maintained Equipment; and
(ii) replacing any parts or components of the Maintained
Equipment,
in each case, as required to restore the Maintained Equipment to
Good Working Order, in accordance with clause 2.3.
(j) Customer means the individual, firm, company or other party with
whom the Company contracts;
(k) Excluded Cause means:
(i) a defect in the manufacturer's design of the Maintained
Equipment;
(ii) faulty materials or workmanship in the manufacture of the
Maintained Equipment;
(iii) use of the Maintained Equipment with computer equipment
hardware or materials not supplied or approved in writing by
the Company;
(iv) any maintenance, alteration, modification or adjustment
performed by persons other than the Company or its employees
or agents unless approved by the Company in accordance with
clause 5.1(h);
(v) the Customer or a third party moving the Maintained
Equipment;
(vi) the use of the Maintained Equipment in breach of any of the
provisions of the Agreement under which the Maintained
Equipment was supplied;
(vii) a failure, interruption, disruption or surge in the electrical
power or its related infrastructure connected to the Maintained
Equipment;
(viii) accumulation of dirt or ingress of foreign substances within the
equipment or corrosion of component parts;
(ix) a defect or damage caused by hazards such as fire, flood storm
(or similar), spillage or leakage of chemicals or other harmful
substances onto the Maintained Equipment;
(x) a defect or damage caused by vermin insect infestations or
similar;
(xi) a defect or damage to software or hardware caused by a
computer virus, denial of service attack or similar malicious
cyberattack;
(xii) defects or damage which relate to a source external to the
Maintained Equipment; or
(xiii) the neglect or misuse of the Maintained Equipment.
(l) Excluded Maintenance any maintenance services required to
restore any malfunctioning or failed Maintained Equipment to Good
Working Order where the malfunction or failure results from or is
caused by any of the Excluded Causes;
(m) Good Working Order the Maintained Equipment operates in
accordance with the Operating Manuals.
(n) Initial Term the initial term of this Agreement, as specified the
Companys confirmation of the Customers Order and/or (where
applicable) the Specification;
(o) Location means the location(s) specified the Companys
confirmation of the Customers Order and/or (where applicable) the
Specification;
(p) Location Standards means the required standards, access
requirements and facilities to be made available at the Location to
Page 10 of 14
enable the Company to provide the Maintenance Services and which
are set out in the Specification
(q) Maintenance Services Corrective Maintenance and Preventative
Maintenance of the Maintained Equipment;
(r) Maintained Equipment the equipment specified the Companys
confirmation of the Customers Order and/or (where applicable) the
Specification;
(s) Maintenance Terms means these maintenance terms set out or
referred to in the Companys acknowledgment of Order
(t) Normal Business Hours 8.00 am to 5.00 pm GMT on a Monday to
Thursday (Business Days) and 8.00 am to 4.00 pm GMT on a Friday
(Business Days);
(u) Order the Customers order for the Maintenance Services as set out
in the Customers purchase order
(v) Operating Manuals all operating manuals, specifications and other
manufacturer documentation relating to the Maintained Equipment;
(w) Payment Fee has the meaning given in clause 7.6;
(x) Payment Frequency means the billing due dates specified the
Companys confirmation of the Customers Order and/or (where
applicable) the Specification;
(y) Preventative Maintenance means:
(i) testing that the Maintained Equipment is functional; and
(ii) making any adjustments as may be required to ensure the
Maintained Equipment remains in Good Working Order,
in accordance with clause 2.2.
(z) Renewal Period the successive 12 month period after the Initial
Term for which this Agreement is renewed the initial term of this
Agreement, or such other period as may be specified the Companys
confirmation of the Customers Order and/or (where applicable) the
Specification;
(aa) Response Time means the initial response time for a request for
maintenance services specified the Companys confirmation of the
Customers Order and/or (where applicable) the Specification;
(bb) Specification the description or specification of the Maintenance
Services provided in writing by the Company to the Customer
(cc) Standard Maintenance Fees the fees payable by the Customer
for the provision of Preventative Maintenance as specified the
Companys confirmation of the Customers Order and/or (where
applicable) the Specification as these fees are varied from time to
time in accordance with the terms of this Agreement; and
(dd) Term the Initial Period together with all Renewal Periods.
1.3 Clause headings shall not affect the interpretation of this Agreement.
1.4 A person includes a natural person, corporate or unincorporated body
(whether or not having separate legal personality).
1.5 A reference to a company shall include any company, corporation or other
body corporate, wherever and however incorporated or established.
1.6 Unless the context otherwise requires, words in the singular shall include
the plural and in the plural shall include the singular.
1.7 Unless the context otherwise requires, a reference to one gender shall
include a reference to the other genders.
1.8 A reference to a statute or statutory provision is a reference to it as
amended, extended or re-enacted from time to time.
1.9 A reference to a statute or statutory provision shall include all subordinate
legislation made from time to time under that statute or statutory
provision.
1.10 A reference to writing or written includes faxes but not e-mail.
1.11 References to clauses are to the clauses of this Agreement.
1.12 Any words following the terms including, include, in particular or any
similar expression shall be construed as illustrative and shall not limit the
sense of the words, description, definition, phrase or term preceding those
terms.
2 CONTRACT TERMS, VARIATIONS AND REPRESENTATIONS
2.1 The Order constitutes an offer by the Customer to purchase Maintenance
Services in accordance with these Maintenance Terms. The Customer is
responsible for ensuring that the terms of the Order and any applicable
specification are complete and accurate and that the Customer gives the
Company any necessary information relating to the Maintenance Services
within a sufficient time to enable the Company duly to perform its
obligations in connection with this Agreement.
2.2 No Order in pursuance of any quotation or otherwise shall be binding on
the Company unless and until:
(a) such Order is accepted in writing by the Company when the Company
confirms the Order has been accepted by sending an
acknowledgement of the Customers Order to the email address
provided by the Customer: or
(b) if earlier, the Company commences the supply of Maintenance
Services.
Any contract made between the Company and the Customer shall be
subject to these Maintenance Terms and save as set out in these
Maintenance Terms no representative or agent of the Company has
authority to agree any terms or make any representations inconsistent with
them or to enter into any contract except on the basis of them. Any such
 term representation on contract will bind the Company only if in writing and
signed by a director of the Company.
2.3 A quotation from the Company is not an offer. Quotations are valid for 30
days from issue and subject to revision or withdrawal at any time before
acceptance of the Customers order by the Company
2.4 Unless otherwise agreed in writing by the Company, these Maintenance
Terms shall apply to the exclusion of any terms and conditions stipulated or
referred to by the Customer in its order, acknowledgement or acceptance
or pre-contract negotiations or any inconsistent terms implied by law or
trade custom, practice or course of dealing.
2.5 Where the Company has not given a written acknowledgment of Order,
these Maintenance Terms will nonetheless apply to the Agreement
provided that the Customer has had prior notice of them.
2.6 Where the Customer does not formally accept a quotation from the
Company but the Customer continues to instruct the Company to provide
Maintenance Services, the Customers continued instructions will be
deemed to be acceptance of these Maintenance Terms
2.7 Any samples, drawings, descriptive matter, or advertising produced by the
Company and any descriptions or illustrations contained in the Company's
catalogues or brochures or website are produced for the sole purpose of
giving an approximate idea of the goods and services described in them.
They shall not form part of the contract or have any contractual force.
2.8 The Company reserves the right to correct any clerical or typographical
error made by its employees (whether in any sales literature, quotation,
price list, acceptance of offer, invoice or other document or information
issued) at any time without any liability on the part of the Company.
2.9 For the avoidance of doubt, except as set out in these Maintenance Terms,
no variation of the Agreement, including the introduction of any additional
terms shall be effective unless it is agreed in writing and signed by a
director of the Company.
2.10 The Agreement constitutes the entire agreement between the parties. The
Customer acknowledges that it has not relied on any statement, promise or
representation made or given by or on behalf of the Company which is not
set out in the Agreement.
3 MAINTENANCE SERVICES
3.1 During the Term, the Company shall provide the Customer with the
Maintenance Services for the Maintained Equipment at the Location.
3.2 The Supplier shall attend at the Location during Normal Business Hours at
a frequency as is specified the Companys confirmation of the Customers
Order and/or (where applicable) the Specification to perform Preventative
Maintenance of the Maintained Equipment.
3.3 The Customer may contact a member of Companys technical team on a
24/7/365 basis by calling such number as may be notified by the Company
to the Customer from time to time for such purposes, and the Company
shall use reasonable endeavours to resolve such issue.
3.4 On the Customer informing the Company that the Maintained Equipment is
malfunctioning or has failed or is otherwise not in Good Working Order, the
Company shall:
(a) use all reasonable endeavours to attend at the Location within the
relevant Response Time
(b) use all reasonable endeavours to perform Corrective Maintenance of
the Maintained Equipment as soon as reasonably practicable
3.5 Corrective Maintenance shall be charged at the Additional Services Rates
for each of the Company's personnel reasonably required to attend the
Location. Any additional charges shall be calculated from when the
personnel commence travelling to the Location until they conclude
travelling back from the the Location.
3.6 In performing the Maintenance Services, the Company shall use all
reasonable endeavours to restore any malfunctioning or failed Maintained
Equipment to Good Working Order while in attendance at the Location.
Where this is not reasonably practicable, or not reasonably practicable
within Normal Business Hours (in the case of Corrective Maintenance and
Preventative Maintenance), the Company shall either arrange for a further
visit to the Location within Normal Business Hours to complete the repair,
or remove the Maintained Equipment or part of the Maintained Equipment
for repair off-site.
3.7 While the Company will use its reasonable endeavours to respond to
maintenance requests within the timescales specified in clauses 3.3 and
3.4, any timescales or specified by the Companys representatives are
estimates only, given in good faith, and the Company will not be liable for
any failure to respond within such timescales. Time for response shall not
be of the essence of the Agreement.
3.8 The Company shall procure that its personnel shall, while on site at the
Location, comply with the Customer's reasonable health and safety and
security policies provided that these policies have been brought to the
attention of its personnel.
4 REPLACEMENTS AND SPARE PARTS
4.1 In performing Preventative Maintenance and the Additional Services
(including Corrective Maintenance), the Company shall use all reasonable
endeavours to source spare parts required to restore the Maintained
Equipment to Good Working Order. Where the individual spare parts
required are made available free of charge under the terms of a warranty
given by any third-party manufacturer, the Company shall not charge the
Page 11 of 14
Customer for the spare parts but the Company shall otherwise charge the
Customer for any spare parts required.
4.2 All spare parts and/or replacements provided by the Company to the
Customer shall become part of the Maintained Equipment and the property
of the Customer. The Company will assign to the Customer, such right and
title as it may have in any spare parts and/or replacements provided and
fitted by the Company. All parts and components removed from the
Maintained Equipment by the Company in the course of performing the
Preventative Maintenance, Corrective Maintenance and/or the Additional
Services shall no longer constitute part of the Maintained Equipment and
will be the property of the Company. The Customer will assign to the
Company, with full title guarantee and free from all third-party rights, all
parts and components removed from the Maintained Equipment by the
Company in accordance with this clause 4.2.
5 CUSTOMERS OBLIGATIONS
5.1 The Customer shall:
(a) ensure that the Location complies with the Location Standards at all
times during the term of this Agreement;
(b) ensure that the Maintained Equipment is installed and kept in suitable
premises and under suitable conditions, as specified in the Agreement
under which the Maintained Equipment was supplied, permit only
trained and competent personnel to use it and follow any operating
instructions as the Company may give from time to time;
(c) notify the Company promptly if the Maintained Equipment is
discovered to be operating incorrectly;
(d) at all reasonable times permit full and free access to the Location and
to the Maintained Equipment to the Company, its employees,
contractors and agents, and provide them with adequate and safe
working space, access to any documentation, software media and
any telecommunications facilities as are reasonably required to
enable the Company to perform the Maintenance Services and the
Additional Services while at the Location;
(e) without prejudice of the generality of clause 4(c), to give the
Company as much advance notice as practicably possible of any
dates that it requires the Company to perform Preventative
Maintenance;
(f) ensure any housekeeping and first line maintenance that the
Customer is permitted to undertake is detailed in the maintenance log
provided for that purpose and provide the Company with any
information that is reasonably requested in the performance of the
Maintenance Services and the Additional Services;
(g) take any steps reasonably necessary to ensure the safety of the
Company's personnel when attending the Location;
(h) save for any housekeeping and first line maintenance that the
Customer is expressly permitted to undertake, not allow any person
other than the Company to maintain, alter, modify or adjust the
Maintained Equipment without the prior written approval of the
Company;
(i) not move the Maintained Equipment from the Location without the
prior written approval of the Company (approval not to be
unreasonably withheld or delayed);
(j) store any reserve equipment only in conditions approved by the
Company, and make this equipment available for periodic
maintenance, as with all other Maintained Equipment;
(k) maintain and make available to the Company at the Location any
spare parts at no cost to the Company. In the event that such spare
parts are not held by the Customer and consequently not available to
the Company, its employees, contractors and agents in execution of
the Maintenance Services, then the Company shall not be responsible
for any delays or expenses that arise therefrom, and
(l) only use supplies or materials supplied or approved by the Company
(approval not to be unreasonably withheld or delayed).
5.2 The Customer agrees to indemnify the Company in respect of any and all
claims, losses, costs, and expenses suffered or incurred by the Company
arising from any act, omission or default of the Customer (including any
breach by the Customer of any of its obligations under this Agreement).
6 EXCLUDED MAINTENANCE
6.1 The Company is not obliged to perform any Excluded Maintenance.
6.2 Where the Company is performing or has performed the Maintenance
Services in circumstances where it is established that the Maintained
Equipment was not in Good Working Order due to any of the Excluded
Causes, the Company may charge, and the Customer shall pay, the
Additional Services Fees in respect of that work
7 CHARGES
7.1 For the performance of Preventative Maintenance, the Customer shall pay
to the Company the Standard Maintenance Fees.
7.2 For the performance of any Additional Services (including Corrective
Maintenance), the Customer shall pay to the Company the Additional
Services Fees.
7.3 The Standard Maintenance Fees shall be due and payable in full to the
Company on the Payment Frequency in advance, within 30 days of receipt
of a valid invoice from the Company. Any Additional Services Fees shall be
due and payable within 30 days of receipt of a valid invoice from the
Company. Any charges for spare parts recoverable in accordance with
 clause 4.1 shall be due within 30 days of receipt of a valid invoice from the
Company.
7.4 The Standard Maintenance Fees and the Additional Services Fees have
been calculated on the basis of the Company providing Maintenance
Services for the Maintained Equipment at the Location as at the Effective
Date within Normal Business Hours. If the Maintained Equipment is
materially altered, adjusted, modified or moved (whether or not with the
approval of the Company and without prejudice to the rights and remedies
of the Company in the event of any unauthorised alterations, adjustments,
modification or movement) the Company reserves the right to vary the
Standard Maintenance Fees and the Additional Services Fees.
7.5 The Standard Maintenance Fees have been calculated on the basis of the
Company providing Preventative Maintenance for the Maintained
Equipment over the prescribed number of visits specified the Companys
confirmation of the Customers Order and/or (where applicable) the
Specification during Normal Business Hours. If the Customer requires
Preventative Maintenance to be carried out outside Normal Business Hours
(or requires more visits than is specified the Companys confirmation of the
Customers Order and/or (where applicable) the Specification) the
Company may (but is not obliged) to perform the Preventative Maintenance
so requested but the Company reserves the right to vary the Standard
Maintenance Fees.
7.6 In the event that the Customer designates Quarterly or Annually as the
Payment Frequency, the Company may, at its sole discretion, require
payment of an additional fee (Payment Fee) in such amount and
frequency as the Company may elect by giving not less than one month
written notice to the Customer.
7.7 If the Customer fails to make any payment due to the Company under this
Agreement by the due date for payment then, without limiting the
Companys remedies under clause 12, the Customer shall pay interest on
the overdue amount at the rate of 4% per annum above the base rate of
HSBC Bank plc from time to time. Such interest shall accrue on a daily
basis until actual payment of the overdue amount, whether or before or
after judgement. The Customer shall pay the interest together with the
overdue amount.
7.8 All Charges are exclusive of VAT or any other applicable sales tax, duties,
charges, levies and other impositions which shall be paid by the Customer
at the rate and in the manner for the time being prescribed by law.
7.9 All Charges are quoted are exclusive of spare parts and the Customer shall
pay any and all spare parts at the Companys price list then in force.
7.10 The Company may, at any time after the Initial Term, increase the
Standard Maintenance Fees by giving to the Customer not less than one
month written notice, provided that the increases shall be no more
frequent than once in any 12-month period.
7.11 Company may, increase the Additional Services Rates by giving to the
Customer not less than one month written notice.
8 COMPANY WARRANTIES
8.1 The Company warrants to the Customer that:
(a) the Maintenance Services and the Additional Services shall be
performed:
(i) by an appropriate number of experienced personnel; and
(ii) using all reasonable skill and care;
(b) the Company has the full capacity and authority and all necessary
permissions, licences and consents necessary to enter into, and
perform its obligations under, this Agreement.
8.2 Except as expressly stated in this Agreement, all warranties, conditions and
terms, whether express or implied by statute, common law or otherwise
(including fitness for purpose and suitability) are hereby excluded to the
extent permitted by law.
9 LIABILITY
9.1 Neither party excludes or limits liability to the other party for:
(a) fraud or fraudulent misrepresentation;
(b) death or personal injury caused by negligence; or
(c) a breach of any obligations implied by section 12 of the Sale of Goods
Act 1979 or section 2 of the Supply of Goods and Services Act 1982.
9.2 Subject always to clause 9.1, neither party shall be liable whether in
contract, tort (including for negligence and breach of statutory duty),
misrepresentation (whether innocent or negligent), restitution or otherwise,
for:
(a) any loss (whether direct or indirect) of profits, business, revenue, or
goodwill;
(b) any special, indirect or consequential loss, costs, damages, charges
or expenses however arising under this Agreement.
9.3 Subject always to clause 9.1, the Companys total aggregate liability in
contract, tort (including negligence and breach of statutory duty),
misrepresentation (whether innocent or negligent), restitution or otherwise,
arising in connection with the performance or contemplated performance of
this Agreement shall be limited to shall in no circumstances exceed the
lesser of:
(a) a sum equal to 5,000 or;
(b) a sum equal to the Charges paid or due and payable to the Company
under this Agreement (in the period of three (3) months prior to the
first event giving rise to the claim or in the first three (3) months of
the Agreement if the event giving rise to the claim occurs in the first
three (3) months
Page 12 of 14
10 INSURANCE
10.1 During the Initial Term and any Renewal Period, the Customer shall, at its
own expense, obtain and maintain the following insurances:
(a) insurance of the Equipment to a value not less than its full
replacement value comprehensively against all usual risks of loss,
damage or destruction by fire, theft or accident, and such other risks
as the Company may from time to time nominate in writing;
(b) insurance for such amounts as a prudent owner or operator of the
Equipment would insure for, or such amount as the Company may
from time to time reasonably require, to cover any third party or
public liability risks of whatever nature and however arising in
connection with the Equipment; and
(c) insurance against such other or further risks relating to the
Equipment as may be required by law, together with such other
insurance as the Company may from time to time consider
reasonably necessary and advise to the Customer.
10.2 All insurance policies procured by the Customer shall be endorsed to
provide the Company with at least twenty (20) Business Days' prior written
notice of cancellation or material change (including any reduction in
coverage or policy amount) and shall upon the Company's request name
the Company on the policies as a loss payee in relation to any claim
relating to the Equipment. The Customer shall be responsible for paying
any deductibles due on any claims under such insurance policies.
11 CONFIDENTIALITY
11.1 Each party undertakes that it shall not at any time during this Agreement
and for a period of five years after termination of this Agreement, disclose
to any person any Confidential Information concerning the business,
affairs, customers, clients or companies of the other party, except as
provided by clause 11.2 and 11.3.
11.2 Each party may disclose the other party's confidential information:
(a) to those of its employees, officers, representatives or advisers who
need to know such information for the purpose of carrying out the
party's obligations under this Agreement. Each party shall ensure that
its employees, officers, representatives or advisers to whom it
discloses the other party's confidential information comply with this
clause 10; and
(b) as may be required by law, court order or any governmental or
regulatory authority.
11.3 The Company may disclose confidential information to any member of the
group of companies to which it belongs.
11.4 No party shall use any other party's confidential information for any
purpose other than to perform its obligations under this Agreement.
12 DURATION AND TERMINATION
12.1 This Agreement shall commence on the Commencement Date and shall
remain in force, unless terminated earlier in accordance with clause 12.2,
for the Initial Term. The Term of the Agreement shall automatically be
extended for a Renewal Period at the end of the Initial Term and at the
end of each Renewal Period. Either party may give written notice to the
other party, not later than 90 days before the end of the Initial Period or
the relevant Renewal Period, to terminate this Agreement at the end of the
Initial Period or the relevant Renewal Period, as the case may be.
12.2 Without affecting any other rights that it may be entitled to, either party
may give notice in writing to the other terminating this Agreement
immediately if:
(a) the other party commits a breach of any material term of this
Agreement and (if such breach is remediable) fails to remedy that
breach within a period of 30 Business Days of being notified in writing
to do so; or
(b) the other party suspends, or threatens to suspend, payment of its
debts or is unable to pay its debts as they fall due or admits inability
to pay its debts or (being a company) is deemed unable to pay its
debts within the meaning of section 123 of the Insolvency Act 1986
or (being a natural person) is deemed either unable to pay its debts
or as having no reasonable prospect of so doing, in either case,
within the meaning of section 268 of the Insolvency Act 1986 or is
the subject of a bankruptcy petition or order or (being a partnership)
has any partner to whom any of the foregoing apply: or
(c) a petition is filed, a notice is given, a resolution is passed, or an order
is made, for or in connection with the winding up of that other party
other than for the sole purpose of a scheme for a solvent
amalgamation of that other party with one or more other companies
or the solvent reconstruction of that other party: or
(d) an application is made to court, or an order is made, for the
appointment of an administrator or if a notice of intention to appoint
an administrator is given or if an administrator is appointed over the
other party; or
(e) any event occurs, or proceeding is taken, with respect to the other
party in any jurisdiction to which it is subject that has an effect
equivalent or similar to any of the events mentioned in clause 12.2(b)
to clause 12.2(d) (inclusive); or
(f) the other party suspends or ceases, or threatens to suspend or
cease, to carry on all or a substantial part of its business.
12.3 Without affecting any other rights that it may be entitled to, the Company
may give notice in writing to the Customer terminating this Agreement
immediately if:
(a) the Customer fails to pay any amount due under this Agreement on
the due date for payment and remains in default not less than 14
days after being notified in writing to make such payment; or
(b) there is a change of control of the Customer (within the meaning of
section 1124 of the Corporation Tax Act 2010); or
(c) the Customer, being an individual, dies or, by reason of illness or
incapacity (whether mental or physical), is incapable of managing his
or her own affairs or becomes a patient under any mental health
legislation; or
(d) the Customer breaches the terms of any other agreement it has with
the Company.
12.4 Any provision of this Agreement that expressly or by implication is intended
to come into or continue in force on or after termination of this Agreement
shall remain in full force and effect.
12.5 Without limiting its other rights or remedies, the Company may suspend
provision of the Maintenance Services under the Agreement or any other
contract between the Customer and the Company if the Customer becomes
subject to any of the events listed in clause 12.2 or clause 12.3, or the
Company reasonably believes that the Customer is about to become
subject to any of them, or if the Customer fails to pay any amount due
under this Agreement on the due date for payment. The Company shall
have no liability to the Customer for any loss it may suffer during such
period of suspension (such as any losses that arise as a result of the failure
of the Maintained Equipment during the period of suspension).
12.6 Termination of this Agreement, for any reason, shall not affect the accrued
rights, remedies, obligations or liabilities of the parties existing at
termination.
13 EFFECT OF TERMINATION
13.1 On termination of this Agreement for any reason, each party shall as soon
as reasonably practicable:
(a) return or destroy (as directed in writing by the other party) any
documents, handbooks, CD-ROMs or DVDs, or other information and
materials provided to it by the other party or data for the purposes of
this Agreement, including all documents and materials (and any
copies) containing, reflecting, incorporating or based on the other
party's Confidential Information.
(b) return all of the other party's equipment and materials (including, for
the avoidance of doubt, any Maintained Equipment which may be
owned by the Company, failing which, the other party may enter the
relevant premises and take possession of them. Until these are
returned or repossessed, the party remaining in possession shall be
solely responsible for their safe-keeping;
(c) the Customer shall immediately pay any outstanding amounts owed
to the Company pursuant to this Agreement
(d) When termination of this Agreement arises as a result of any breach
by the Customer of clause 12.2 or 12.3, then, addition to any
outstanding amounts payable in respect of clause 13.1(c), the
Customer shall be obliged to pay to the Company by way of
compensation, the rest of the Charges the Customer would have paid
over the whole Initial Term, or, where the term has continued
pursuant to clause 12.1, any applicable Renewal Period less such
compounded discount as the Company shall reasonably apply to
reflect any cost savings arising from the accelerated payment for
early termination.
13.2 The Company and the Customer confirm that any sums calculable and
payable pursuant to clause 13.1(d) represent a genuine pre-estimate of the
Companys loss.
13.3 Regardless of its obligations in this clause 13, if a party is required by any
law, regulation, or government or regulatory body to retain any documents
or materials which it would otherwise be required to return or destroy
under clause 13.1(a), it shall notify the other party in writing of that
retention, giving details of the documents or materials that it must retain.
Clause 10 shall continue to apply to any retained documents and materials,
subject to this clause 13.
14 FORCE MAJEURE
14.1 Neither party shall be liable to the other, or be deemed to be in breach of
this Agreement, by reason of any delay in performing, or failure to
perform, any of its obligations under this Agreement if the delay or failure
was beyond that party's reasonable control (including without limitation,
fire, flood, explosion, epidemic, riot, civil commotion, any strike, lockout or
other industrial action, act of God, war, warlike hostilities or threat of war,
terrorist activities, accidental or malicious damage and any prohibition or
restriction by any government or other legal authority which affects this
Agreement and which is not in force on the date of this Agreement).
14.2 A party claiming to be unable to perform its obligations under this
Agreement (either on time or at all) in any of the circumstances set out in
clause 15.1 shall notify the other party of the nature and extent of the
circumstances in question as soon as practicable.
14.3 This clause 15.1 shall cease to apply when such circumstances have ceased
to have effect on the performance of this Agreement and the party affected
shall give notice to the other party that the circumstances have ceased.
Page 13 of 14
14.4 If any circumstance relied on by either party for the purposes of this clause
15.1 continues for more than six months, the other party shall be entitled
to terminate this Agreement by giving one month's notice.
15 GENERAL
15.1 This Agreement (and any document referred to in it) constitutes the whole
Agreement between the parties and supersedes all previous Agreements
between the parties relating to its subject matter.
15.2 Unless otherwise agreed in writing by the Company (which shall include
anything contained in any quotation delivered by the Company to the
Customer) this Agreement shall apply to the exclusion of any terms and
conditions stipulated or referred to by the Customer in his order (whether
by written purchase order or otherwise) or pre-contract negotiations or any
inconsistent terms implied by law or trade custom, practice or course of
dealing.
15.3 Each party acknowledges that, in entering into this Agreement (and any
document referred to in it), it has not relied on, and shall have no right or
remedy in respect of, any statement, representation, assurance or
warranty (whether made negligently or innocently) other than as expressly
set out in this Agreement. Each party agrees that its only liability in respect
of those representations and warranties that are set out in this Agreement
(whether made innocently or negligently) shall be for breach of contract.
Nothing in this clause shall limit or exclude any liability for fraud
15.4 Subject to clause 7.9, no amendment or variation of this Agreement shall
be effective unless it is in writing and signed by the parties (or their
authorised representatives).
15.5 If a provision of this Agreement (or part of any provision) is found illegal,
invalid or unenforceable, the provision shall apply with the minimum
modification necessary to make it legal, valid and enforceable.
15.6 If any provision of this Agreement (or part of any provision) is found by
any court or other authority of competent jurisdiction to be invalid, illegal
or unenforceable, that provision or part-provision shall, to the extent
required, be deemed not to form part of this Agreement, and the validity
and enforceability of the other provisions of this Agreement shall not be
affected.
15.7 The Company may at any time assign, transfer, mortgage, charge or deal
in any other manner with any or all of its rights and obligations under this
Agreement. The Company may sub-contract or delegate in any manner
any or all of its obligations under this Agreement to any third party or
agent.
15.8 The Customer shall not, without the prior written consent of the Company,
assign, transfer, charge or deal in any other similar manner with this
Agreement or its rights or any part of them under this Agreement, sub-
contract any or all of its obligations under this Agreement, or purport to do
any of the same.
15.9 Each party that has rights under this Agreement is acting on its own behalf
and not for the benefit of another person
15.10 The parties declare that they each have the right, power and authority and
have taken all action necessary to execute and deliver and to exercise their
rights and perform their obligations under this Agreement.
15.11 No failure or delay by the Company to exercise any right or remedy
provided under this Agreement or by law shall constitute a waiver of that
or any other right or remedy, nor shall it preclude or restrict the further
exercise of that or any other right or remedy. No single or partial exercise
of such right or remedy shall preclude or restrict the further exercise of
that or any other right or remedy.
15.12 A person who is not a party to this Agreement shall not have any rights
under or in connection with it by virtue of the Contracts (Rights of Third
Parties) Act 1999.
15.13 The rights of the parties to terminate, rescind or agree any variation,
waiver or settlement under this Agreement are not subject to the consent
of any person that is not a party to this Agreement
15.14 Except as expressly provided, nothing in this Agreement is intended to, or
shall be deemed to, establish any partnership or joint venture between the
parties, constitute either party the agent of the other, nor authorise a party
to make or enter into any commitments for or on behalf of the other party
15.15 This Agreement may be executed in any number of counterparts, each of
which when executed and delivered shall constitute an original of this
Agreement, but all the counterparts shall together constitute the same
Agreement.
16 NOTICES
16.1 Any notice or other communication to be given under this Agreement shall
be in writing and in the English language and may be delivered by hand or
sent by pre-paid post (by airmail post if to an address outside the country
of posting) or fax to:
(a) in the case of the Company, to Quantum Controls Limited Quantum
House, 6A Dukesway, Prudhoe, Northumberland, NE42 6PQ (fax
number 01661 833 868); and
(b) in the case of the Customer, to the addresses specified the
Companys confirmation of the Customers Order and/or (where
applicable) the Specification,
or (such other address as a party shall notify to the other from time to
time and in each case, marked for the attention of the Managing Director
in relation to the Company and Managing Director in relation to the
Customer.
16.2 Any notice or document shall be deemed served (a) if delivered by hand, at
the time of delivery unless delivered after 5.00 pm GMT in which case they
shall be given on the next Business Day (b) if posted, two Business Days
after posting (five Business Days if sent by airmail post) and (c) if sent by
fax, at the time of transmission printed on the transmission confirmation
sheet provided that an error free transmission report has been received by
the sender and if the time of transmission is after 5.00 pm GMT on a
Business Day or at any time on a day that is not a Business Day the notice
shall be deemed to have been received at 9.00 am GMT on the next
Business Day.
16.3 In proving the service of any notice it will be sufficient to prove, in the case
of a letter, that such letter was properly addressed, stamped and placed in
the post and, in the case of a fax, that such fax was duly dispatched to a
current fax number of the addressee.
16.4 Neither party may use email as a valid means of serving on the other party
any (a) notice of breach of this Agreement; and (b) legal or court
document including the service, delivery or notification of any claim form,
notice, order, judgement of other document relating to or in connection
with any proceedings, suit or action arising out of or in connecting with this
Agreement.

17 GOVERNING LAW AND JURISDICTION

17.1 This Agreement and any dispute or claim arising out of or in connection
with it or its subject matter or formation (including non-contractual
disputes or claims) shall be governed by and construed in accordance with
English law.
The parties irrevocably agree that the courts of England and Wales shall have
non-exclusive jurisdiction to settle any dispute or claim that arises out of or in
connection with this Agreement or its subject matter or formation (including non-
contractual disputes or claims).

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